This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Brad Grunig,




Filed September 9, 2003


Anderson, Judge

Concurring specially, 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 appellant)


John M. Stuart, State Public Defender, Bradford W. Colbert, Assistant Public Defender, 875 Summit Avenue, L.A.M.P. Room 254, St. Paul, MN 55105 (for respondent)


            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            This appeal from a conviction for conspiracy to manufacture methamphetamine was remanded to this court by the supreme court for reconsideration in light of State v. Licari, 659 N.W.2d 243 (Minn. 2003).  Because we conclude the state has not shown the caretaker had actual or apparent authority to consent to the warrantless search, we reverse.


            Respondent Brad Grunig shared an apartment and an unattached garage with his girlfriend, Amy Herzog.  Grunig lived at the apartment and stored his personal belongings in the garage.

            On August 3, 2000, Dale Wurtzberger, the caretaker of the apartment complex, received a complaint from another tenant that an odor was coming from Herzog’s garage.  Wurtzberger, who had previously passed on another complaint of an odor coming from Herzog’s apartment, contacted the police and reported the complaint.  Corporal Gerald Losinski, 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.  Wurtzberger testified, however, that he assumed he had permission to open the garage, although he did not have it in writing.  Wurtzberger admitted that 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 asked to do so.

            The police officer who made the warrantless entry testified that he asked Wurtzberger if he had “permission or consent to enter the garage.” The response from Wurtzberger was that “[h]e can go in when he wants to.”

            The district court denied the defense motion to suppress the evidence, concluding that there was a “compelling urgency” for the officer to enter the garage, and that the emergency exception to the warrant requirement applied.  The court did not address whether Wurtzberger had actual or apparent authority to consent to a search of Herzog’s garage.  On appeal, this court reversed, concluding that neither the community-caretaker nor the emergency exception to the warrant requirement applied.  State v. Grunig, No. C0-01-1101 (Minn. App. June 25, 2002), rev’d in part, remanded, 660 N.W.2d 134 (Minn. 2003).  The supreme court granted further review and reversed this court’s conclusion that the state waived the issue of Wurtzberger’s actual or apparent authority.  Id. at 137.  The court remanded for reconsideration of Wurtzberger’s actual or apparent authority to consent to the search of the garage, consistent with the court’s recent decision in State v. Licari, 659 N.W.2d 243 (Minn. 2003).


            The parties have submitted supplemental briefs addressing the effect of Licari on this appeal.  “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).  Both actual and apparent authority, as part of the question whether police obtained valid consent, are legal issues to be reviewed de novo on appeal.  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 treated the question of actual authority as a legal issue by not granting any deference to the district court’s determination of actual authority, and the court further noted that an objective standard applied in determining whether the landlord had apparent authority.  Licari, 659 N.W.2d at 251-54. 

            The supreme court noted in Licari that the general rule is that a landlord does not have actual authority to consent to a warrantless search of the premises occupied by the tenant.  659 N.W.2d at 251.  That is because the landlord, even if reserving the right of access, “typically does not have rights of use.”  Id.   The 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 search.  See id. at 250-52 (citing United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 992-993 (1974)).  The 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 search could be based.  Id.  at 256.

            Here, the lease has not been made a part of the record, and Wurtzberger’s omnibus-hearing testimony indicated he was generally unfamiliar with its terms.  But the state does not argue that this matter should be remanded to the district court to develop the facts regarding Herzog’s lease.  Instead, the state argues that Wurtzberger had actual authority to consent to search derived from statute.  Alternatively, the state argues that the fact that Wurtzberger initiated the contact with police, or that they were investigating a noxious odor, distinguishes this case from Licari.

            The statute cited by the state, Minn. Stat. § 504B.211, subds. 2, 3 (2000), defines a residential tenant’s statutory right to privacy.  The statute allows entry by the landlord for a “reasonable business purpose.”  Id. at subd. 2 (2000).  But the “common authority” to consent identified in Licari, and developed in the case law since Matlock, has been found in the relationship of the parties to the premises, not in powers conferred on landlords generally by the legislature.  See Matlock, 415 U.S. at 169, 94 S. Ct. at 992 (noting general acceptance of assumption that joint occupant of residence may consent to search of premises).  Even if Minn. Stat. § 504B.211, subds. 2, 3, were relevant in defining the landlord-tenant relationship for purposes of the fourth amendment, that provision grants the landlord only rights of entry, i.e., access, not the rights of mutual use found determinative in Licari

            The police here had only an assurance from Wurtzberger that he could enter the garage.  But the supreme court in Licari rejected rights of access as a basis for an authority to consent to search.  659 N.W.2d at 251-52.  Thus, the police entry here was based on a mistake of law—taking rights of access as evidence of authority to consent.  And police may not reasonably rely on an erroneous view of the law.  Id. at 253-254.  Thus, the assurances police received from Wurtzberger fail to establish mutual use see id., and therefore do not establish actual authority.

            It is possible that Herzog’s lease gave her landlord, and Wurtzberger, rights of mutual use of the garage.  But the state has not made the lease part of the record.  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 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.  But Wurtzberger gave police no indication he had such a right, and the record does not include a copy of the lease, or any evidence of its provisions.  Therefore, the state has not met its burden of proving that the consent exception to the warrant requirement applies.

            The state also argues that, even if this court finds that Wurtzberger did not have a right of mutual use of the garage, police could enter under the “community-caretaker” exception, particularly since Wurtzberger had asked them to enter.  But the supreme court did not grant further review of the “community-caretaker” exception, which this court in its earlier opinion held did not apply on these facts.  The application of that exception is not within the terms of the remand, and we decline to reconsider our previous holding on that issue.  Because the state has failed to show that police had consent from someone with actual or apparent authority to consent to the warrantless entry, we reverse the district court’s order refusing to suppress the evidence against respondent.



HARTEN, Judge (concurring specially)

            Given the parties’ apparent disinterest in a remand to the district court to supplement the record on the apartment lease and community caretaker exception factors, I am compelled to concur with the result.