This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Amy Marie Herzog,



Filed September 9, 2003


Gordon W. Shumaker, Judge


Brown County District Court

File No. K100514


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; 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 State Public Defender, 2221 University Avenue Southeast, Suite 425, 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


            This appeal of appellant Amy Herzog’s conviction for conspiracy to manufacture methamphetamine has been remanded by the supreme court for reconsideration in light of that court’s decision in State v. Licari, 659 N.W.2d 243 (Minn. 2003).  Because we conclude police did not obtain a valid consent to the warrantless entry into Herzog’s rented garage, we reverse.


          Appellant Amy Herzog leased an apartment and detached garage in New Ulm.  Herzog’s boyfriend, Brad Grunig, also lived in the apartment, along with Herzog’s daughter.[1]

            On August 2, 2000, Dale Wurtzberger, the caretaker of the apartment complex, received a complaint from another tenant of an odor coming from Herzog’s garage.  Wurtzberger, who had previously received another complaint of an odor coming from Herzog’s apartment, called the police station and reported the complaint.  A police officer met Wurtzberger at the apartment complex where Wurtzberger used a key to open the garage, and the officer entered.  Upon entry, the officer saw items used to manufacture methamphetamine, and police later obtained a warrant to search the garage.

            Wurtzberger testified at the consolidated omnibus hearing that he had a key to Herzog’s garage and he thought he had permission to enter the garage.  On cross-examination, he indicated he had no knowledge of Herzog’s written lease.  He testified, however, that he assumed he had permission to open the garage, although he did not have it in writing.  Wurtzberger admitted that on August 2, he was uncertain of his “right to go into that garage.”  Wurtzberger also admitted that he didn’t “go in and out” of the tenants’ garages unless he was asked to do so.

            The police officer who made the warrantless entry, Corporal Gerald Losinski, testified that he asked Wurtzberger if he had “permission or consent to enter the garage,” and that Wurtzberger replied, according to Losinski, that he could go into the garage when he wanted to.

            The district court denied the defense motion to suppress the evidence, concluding that the emergency exception to the warrant requirement applied.  The court did not address whether the caretaker had actual or apparent authority to consent to a search of Herzog’s garage.  Herzog entered into a Lothenbach stipulation to expedite appellate review of the search issue, and was convicted and sentenced.  On appeal, this court affirmed the conviction, holding that Wurtzberger had apparent authority to consent, and therefore the consent exception to the warrant requirement applied.  State v. Herzog, No. C3-01-802 (Minn. App. Apr. 30, 2002), review granted (Minn. June 26, 2002), and appeal remanded (Minn. May 20, 2003).


            “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).  Issues of actual and apparent authority, as part of the question whether police obtained valid consent, are determined without deference to the district court’s decision.  See State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998) (holding, without deference to the district court, under a “totality of the  circumstances” test, that police obtained consent from a person with apparent authority).  The supreme court in Licari analyzed the question of actual authority without deference to the district court’s determination, and noted that an objective standard applied in determining whether the landlord had apparent authority.  State v. Licari, 659 N.W.2d 243, 253 (Minn. 2003).

            The general rule is that a landlord does not have actual authority to consent to a warrantless search of the premises occupied by a tenant.  Id. at 251.  That is because the landlord, although reserving the right of access, “typically does not have rights of use.”  Id.  The Licari court, relying on a 1974 Supreme Court case making mutual use of the property the critical factor in determining a third party’s common authority over the property for purposes of the consent to search, rejected the view that a landlord’s right of access alone can provide the authority to consent to a search.  Id. at 250-51 (citing United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)).  The Licari court then remanded for the district court to address whether a relocation clause in the lease provided any rights of use to the landlord upon which authority to consent to a search could be based.  Id. at 256.

            Herzog’s lease was not made part of the record in the district court.  Wurtzberger indicated he had no knowledge of the provisions of the lease.  Wurtzberger’s statements to Corporal Losinski, and his testimony at the omnibus hearing, related only to Wurtzberger’s perceived right of entry, or access.  But the supreme court in Licari rejected rights of access as a basis for authority to consent to a search.  Id. at 251-52.  And, although an officer can rely on a third party’s apparent authority to consent to a search, an officer cannot rely on facts that would not establish actual authority.  Id. at 253.  Here, “the assurances police received [from Wurtzberger], even if true, would fail to establish ‘mutual use’[,]” and therefore do not establish actual authority.  Id. 

            The state has the burden of establishing that an exception to the warrant requirement (such as valid consent) applies.  State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001); see also State v. George, 557 N.W.2d 575, 579 (Minn. 1997) (holding that the state must prove the defendant’s consent was freely and voluntarily given).  Licari establishes that, in order to have had apparent authority to consent to the search, Wurtzberger had to have some right of mutual use of the garage.  The state, however, has not established that Wurtzberger had any right of mutual use.

            The state argues that Wurtzberger had actual authority pursuant to Minn. Stat. § 504B.211, subd. 3 (2000), which defines the “reasonable business purpose[s]” for which a landlord may enter the premises rented by the tenant.  This statute defines the power conferred on all landlords.  But the analysis in Licari focuses on the rights of particular parties respecting the particular premises searched.  Moreover, even if section 504B.211, subd. 3, could provide the required authority under Licari, the statute confers only rights of access, not the right to use of the property found critical in Licari.

            The state also argues that, even if this court finds that Wurtzberger did not have authority to consent to a search, this court should address the other grounds advanced for upholding the search – Herzog’s alleged forfeiture of a reasonable expectation of privacy, the “emergency” exception, the community-caretaker exception, and the inevitable-discovery doctrine.  This court’s prior opinion relied on the consent exception and did not address those issues.

            The state contends that the warrantless entry was reasonable because by creating a nuisance appellant had forfeited her right to privacy in the garage.  The state cites State v. Perkins, 588 N.W.2d 491, 493 (Minn. 1999), in which the supreme court held that a defendant who was renting a hotel room and had signed an acknowledgment that he would have to leave if he caused a disturbance, but nevertheless hosted a loud party in the hotel room during the early morning hours that continued even after hotel management warned him twice to quiet down, had waived any reasonable expectation of privacy.

            Herzog had not agreed that police would be allowed to enter of the garage if it became the source of suspicious odors.  More importantly, the noise level in the hotel room in Perkins by itself caused injury to other hotel guests, warranting action by the hotel.  Here, it required further investigation to determine whether the odor coming from Herzog’s garage posed a threat or a nuisance to other residents that warranted further action.  And finding a waiver of the expectation of privacy from smell alone would require too subjective a judgment.  In Perkins, the guest’s signed acknowledgment and the two warnings gave ample notice from which a waiver could be found without relying on a subjective assessment of the noise level itself.  Id. 

            The state also argues that the warrantless entry into the garage was justified by the emergency exception to the warrant requirement. 

            “The police may enter a dwelling 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) (citations omitted).  But the state has the burden of showing that the emergency exception applies, and the officer’s belief that an emergency existed must be reviewed objectively.  Id.

            We believe that the odor coming from Herzog’s garage would not have caused a person exercising reasonable caution to believe immediate entry without the tenant’s consent was required.  The question is not, as the district court viewed it, the subjective motive of the officer, but the objective reasonableness of the officer’s action.  There was no missing-persons report, no evidence a person was in the garage, and no other circumstances indicating a need for immediate police action.  See generally 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).

            The state also argues that the warrantless entry was justified by the community-caretaker exception to the warrant requirement.  “[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).  One example is inventory searches.  Colorado v. Bertine, 479 U.S. 367, 381, 107 S. Ct. 738, 746 (1987) (Marshall, J., dissenting) (providing that “[i]nventory searches are not subject to the warrant requirement because they are conducted by the government as a part of a ‘community caretaking’ function * * * .”).  Wurtzberger, however, could have entered the garage himself to check on the odor.  Indeed, the state argues that Minn. Stat. § 504B.211, subd. 3, gave him that authority.  The involvement of police in “check[ing it] out,” as the officer described it, was plainly prompted, at least in part, by the police investigative function.  Thus, the state’s argument that the community-caretaker exception applied to the officer’s search of the garage is without merit.

            The state has not cited any authority for applying the inevitable-discovery doctrine in these circumstances.  There was no police investigation in progress before Wurtzberger led Corporal Losinski to the garage.  Moreover, it is just as likely that Herzog would have discovered the odor and corrected the problem as that police would lawfully have acquired access to the garage.  Because we conclude that none of the exceptions to the warrant requirement apply, and that Herzog’s conviction was based on illegally obtained evidence, we reverse her conviction.


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


[1] Grunig’s appeal, State v. Grunig, C0-01-1101, (Minn. App. June 25, 2002), review granted (Minn. Sept. 17, 2002), was also reversed in part and remanded by the supreme court for reconsideration in light of Licari.