This opinion will be unpublished and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
Andrea Joy Cornelius,
State of Minnesota,
Filed February 10, 2004
Carver County District Court
File No. T7-02-6736
Stefan A. Tolin, 401 Second Avenue South, Suite 540, Minneapolis, MN 55401-2307 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant Carver County Attorney, 604 East Fourth Street, Chaska, MN 55318 (for respondent)
Considered and decided by Anderson, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
G. BARRY ANDERSON, Judge
Appellant Andrea Cornelius challenges her conviction of fourth-degree driving while under the influence under Minn. Stat. § 169A.27 (2002), arguing that she had a reasonable expectation of privacy in the underground-parking garage to her apartment building and that the officer illegally entered the garage without a warrant to perform the investigatory stop. We affirm.
On August 30, 2002, at approximately 12:11 a.m., Chaska Police Officer Jamie Personius observed appellant’s vehicle leave the parking lot of Cy’s Bar with its lights on. The vehicle’s headlights then turned off when it entered Highway 212. Personius followed the car eastbound on Highway 212, eventually passing the car to determine that its headlights were in fact turned off. After the vehicle exited Highway 212, Personius observed appellant travel through a stop sign at about 15-20 miles per hour and then pull into the Brickstone Estates apartment-complex garage.
Appellant testified that the garage door was going down when Personius drove into the garage. Personius did not activate his emergency lights at any time while following the vehicle, and claims that he could not stop appellant’s car prior to entry into the apartment-complex garage. Personius pulled behind appellant’s vehicle in its garage stall, confronted appellant regarding her driving conduct, and eventually arrested her for DWI. Both Personius and appellant believed that when confronted, appellant’s liberty was restricted and she was not free to leave.
Appellant gave uncontroverted testimony that she lived in Brickstone Estates, a group of approximately 40 apartment or town homes, and that, as a part of her rental payment, she and the other tenants were given exclusive use of the parking garage. Each tenant was given an automatic garage door opener/closer and there was a sign directly outside the garage that restricted the use of the garage to tenants only. The garage was in an enclosed structure attached to the apartment building and the tenants had direct access to their apartment/town homes from the stairs leading out of the garage.
The district court found appellant guilty of fourth-degree DWI, in violation of Minn. Stat. § 169A.27 (2002), and sentenced her to 90 days jail time and a $1,000 fine, with $650 of the fine and the jail time in its entirety stayed on certain conditions. This appeal followed.
Appellant argues the district court erred in concluding she did not have a reasonable expectation of privacy in her underground-parking garage. When reviewing a search or seizure challenge under the Fourth Amendment to the United States Constitution or Article I, section 10, of the Minnesota Constitution, the reviewing court may independently analyze undisputed facts to determine, as a matter of law, whether evidence resulting from the search or seizure should be suppressed. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
The Fourth Amendment of the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches of persons and their homes. U.S. Const. amend. IV; Minn. Const. art. I, § 10. This Fourth Amendment protection also extends to a home’s curtilage. See United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139 (1987). To claim the protection of the Fourth Amendment, an individual must demonstrate that he personally has an expectation of privacy in the place where the search or seizure occurred and that society recognizes his expectation as reasonable. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998); State v. Richards, 552 N.W.2d 197, 204 (Minn. 1996).
The threshold question here is whether appellant had an objective, reasonable expectation of privacy in the underground-parking garage to her apartment complex. We hold that she did not.
Appellant asserts the garage should be considered “curtilage,” therefore requiring Fourth Amendment protection. Curtilage is an area that “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. at 300, 107 S. Ct. at 1139 (quotations omitted). “In a modern urban multifamily apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control.” United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980) (quoting Commonwealth v. Thomas, 267 N.E.2d 489, 491 (Mass. 1971)); United States v. Reilly, 76 F.3d 1271, 1277 (2nd Cir. 1996) (same); United States v. Cruz Pagan, 537 F.2d 554, 557-58 (1st Cir. 1976) (citations omitted). Areas labeled as “common areas” (i.e., areas commonly used by other people coming and going in the building), are outside one’s “curtilage” and may not have a legitimate Fourth Amendment expectation of privacy. See, e.g., United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (stating one has no reasonable expectation of privacy in a common apartment building hallway). While Eisler and its progeny mostly speak to privacy rights in common areas that are likened to hallways or corridors, the parking garage here, used in common by the tenants of the apartment building, along with their guests, landlords, and their agents, is similar in nature to a common hallway of an apartment building, therefore making the caselaw very persuasive. Common areas need not be accessible to the public at large nor have a required amount of daily traffic through the area to reach the conclusion that a common area is beyond an individual’s protected zone of privacy. United States v. Holland, 755 F.2d 253, 256 (2nd Cir. 1985).
Appellant asserts the parking
garage, by posting a sign indicating private parking for tenants only, meant to
provide both privacy and security, therefore, creating a situation different
from locked entrances of apartment complexes.
We disagree. While
the garage is “private” in the sense that parking within is limited to its tenants, it is not “private” for purposes of the Fourth Amendment’s warrant requirement. See Eisler, 567 F.2d at 816 (stating “the locks on the doors to the entrances to the apartment complex were to provide security to the occupants, not privacy in common hallways”); see also Cruz Pagan, 537 F.2d at 558 (holding that the agents’ entry into the underground parking garage of a condominium did not violate the Fourth Amendment); People v. Terry, 454 P.2d 36, 48 (Cal. 1969) (stating that any expectation of privacy as to the object in plain sight in the car that was parked in the garage would have been unreasonable, and no constitutionally protected right of privacy was violated when the officers looked through the window of the car). The parking garage here is a common area available for use by all tenants, along with their guests and agents. While some of the general public is excluded, not all others that a reasonable person would want excluded from their most intimate activities are. The efforts made to exclude the general public here were for security purposes and did not alone create the type of privacy that invokes the Fourth Amendment.
Appellant is correct in her assertion that there is caselaw supporting the opposite conclusion. See United States v. Fluker, 543 F.2d 709, 716-17 (9th Cir. 1976) (holding a tenant had a reasonable expectation of privacy to an outer doorway leading to the doors of two living units); United States v. Carriger, 541 F.2d 545, 552 (6th Cir. 1976) (holding “that when . . . an officer enters a locked building, without authority or invitation, the evidence gained as a result of his presence in the common areas of the building must be suppressed”); cf. 1 Wayne R. LaFave, Search and Seizure § 2.3 (b), at 477-78 (3d ed. 1996) (acknowledging split in authority). But in Fluker the court specifically distinguished its situation from that in a multi-unit complex. 543 F.2d at 716. Also, the rule in Carriger currently is the minority view and is not followed by the Eighth Circuit. Further, all cases supporting a finding of a reasonable expectation of privacy in common areas of apartment complexes have limiting facts; the cases all deal with duplexes or smaller dwellings. Here, we have a 40-unit apartment complex, a clearly distinguishable situation. While “the interests of the Fourth Amendment are better served by assessing each case on its individual facts,” State v. Trecroci, 630 N.W.2d 555, 565 (Wis. Ct. App. 2001), current caselaw demands that the larger the complex, the less likely a tenant will have a reasonable expectation of privacy in the common areas of the building. See id. at 566 (holding tenant did have a reasonable expectation of privacy but noting “unlike a conventional apartment complex where all tenants would have access to all the common areas, here the first-floor tenant did not have access to the stairway”).
After review of the record, we conclude that appellant has failed to prove that she had a legitimate expectation of privacy in the parking garage. The evidence shows that all tenants had access to the garage along with any of their visitors. While access by third parties alone does not negate a reasonable expectation of privacy, here the parking garage was also not an area where it was reasonable for appellant to expect to partake in those intimate activities associated with a privacy expectation in her home. Both Eighth Circuit and other persuasive case law support the conclusion that a tenant has no legitimate expectation of privacy in a parking garage that is used by multiple tenants such that it is considered a common area. Therefore, appellant’s Fourth Amendment rights were not violated. Because we conclude here that appellant has no legitimate expectation of privacy in a parking garage used by multiple tenants, it is not necessary to reach the balance of appellant’s argument.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 One commentator has said relative to the expectation of privacy: “[I]t is a fair generalization that the lands adjoining a multiple-occupancy residence are less likely to receive Fourth Amendment protection than the yard of a single-family residence” because “the privacy expectation as to such an area is often diminished because it is not subject to the exclusive control of one tenant and is utilized by tenants generally and the numerous visitors attracted to a multiple-occupancy building.” 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 509 (3d ed. 1996).
 See, e.g., O’Connor v. Ortega, 480 U.S. 709, 721-24, 107 S. Ct. 1492, 1499-1501 (1987) (noting access by others to an employee’s work area does not negate an employee’s reasonable expectation of privacy to his or her work area).