This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of the Welfare of:
C.J.O., Child.


Filed April 20, 2004


Peterson, Judge


St. Louis County District Court

File No. JX02651699


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3230 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Alan L. Mitchell, St. Louis County Attorney, Charles P. Schumacher, Assistant County Attorney, 320 West Second Street, Suite 403, Duluth, MN  55802 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a delinquency adjudication of second-degree burglary following a trial on stipulated facts, appellant argues that the district court erred in denying his pretrial motion to suppress evidence obtained during a search of a residence where he was a guest.  We reverse.


            Deputy Brian Schilla responded to a burglary report at a residential address.  Upon inspecting the property, Schilla found three sets of footprints.  One set belonged to the homeowner; the other two sets were not identified.  Schilla followed the unidentified footprints to a residence located less than a quarter mile from the reported burglary.  In the course of his investigation, Schilla identified suspects and learned that the suspects were likely at B.N.’s home.  Schilla and his partner approached B.N.’s home. 

            While Schilla’s partner went to the front door, Schilla walked around to the back of the house. Schilla saw what looked like an attached garage or storage area, but the structure did not have a large door for cars; it had only a smaller door for people.  The door was open.  Schilla entered through the open doorway and knocked on an interior door that led into the house.  A “younger-looking male” answered the door, saw Schilla, said, “Oh shit,” and turned and walked back in without closing the interior door.  Schilla looked into the house and saw approximately ten “kids” in the kitchen who did not  appear to Schilla to be over the age of 21.  He also saw several beer cans and liquor bottles, but he did not recall seeing anyone consuming alcoholic beverages.[1]

            Schilla stepped into the kitchen and asked the occupants for identification.  He also asked to speak with the tenants of the property.  After identifying one of the tenants, Schilla asked if B.N. was present.  B.N. appeared and spoke with Schilla in the kitchen.  Schilla asked if two of the suspects were there, and B.N. gave him a blank stare and asked, “Why?”  Other people in the kitchen encouraged B.N. to show Schilla where the suspects were.  B.N. started walking to the front of the house and up a stairway.  Schilla followed him up the stairs to a bedroom door.  B.N. unlocked and opened the door, and Schilla found six young people in the room.  Schilla identified the suspects and asked them to display the bottoms of their shoes.  After determining that their shoes did not match the tracks at the burglary site, Schilla asked them whom they were with earlier in the day, and they pointed to B.J.T. and appellant C.J.O., who were in the bedroom.  After determining that B.J.T.’s and C.J.O.’s shoes matched the tracks at the burglary site, Schilla took them into custody.  While in the house, Schilla discovered evidence that linked C.J.O. to the burglary.

            C.J.O. was charged with one count of second-degree burglary.  C.J.O. moved to suppress all evidence seized as a result of Schilla’s entry into B.N.’s home.  Following an omnibus hearing, the district court determined that there was implicit consent to Schilla’s entry when someone “opened the door and walked away leaving it open,” and denied C.J.O.’s motion.  The case was submitted to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W. 2d 854 (Minn. 1980).  The court adjudicated appellant delinquent and imposed disposition.


When reviewing pretrial orders on motions to suppress evidence where the facts are not in dispute, 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. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

            The exclusionary rule prohibits the admission of evidence discovered during an illegal search.  In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn. 2003).  “It is well settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is “‘per se’ unreasonable * * * subject only to a few specifically established and well delineated exceptions.’”  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).  “It is equally well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”  Hanley, 363 N.W.2d. at 738.

“[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”


Id., (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993 (1974)) (emphasis added in Hanley). 

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property.  The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.


Hanley, 363 N.W.2d at 738-39 (quoting Matlock, 415 U.S. at 171, n. 7, 94 S. Ct. at 993, n. 7) (emphasis added in Hanley). 

Where common authority does not actually exist, consent to enter is still valid where, “under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.”  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998) (citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990)).  “Apparent authority exists only if the authority claimed by the third party would, if true, be sufficient to satisfy the legal test for actual authority.”  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).  “Stated another way, if the facts possessed by police would not establish actual authority to consent under the law, police reliance on those facts cannot be reasonable.” Id. at 253.

C.J.O. argues that the state failed to prove that the young man who answered the door had authority to consent to Schilla’s entry into B.N.’s home, and because there was not valid consent, all evidence seized as a result of the unlawful entry should have been suppressed.  We agree.

The district court found that implied consent was given when “someone opened the door and walked away leaving it open.”  But even if opening the door and walking away without closing it could be interpreted as constituting consent for Schilla to enter, there is no evidence that the young man who opened the door had actual or implied authority to consent to Schilla’s entry.  When Schilla entered the kitchen of B.N.’s home, he had no reason to believe that the young man who answered the door had joint access or control of the home for most purposes.  The evidence does not even establish who the young man was.  Therefore, the state failed to prove that there was valid consent to the entry, and the district court erred when it did not suppress the evidence obtained as a result of the entry.

Because we have concluded that there was not consent to Schilla’s entry into the kitchen of B.N.’s home, we need not address C.J.O.’s additional arguments that Schilla violated the Fourth Amendment when he entered the structure attached to the home and that the young man’s act of opening the door and walking away without closing it did not constitute consent to Schilla’s entry.


[1] Underage consumption is not an issue in this case, and the state does not argue that the circumstances that Schilla observed constituted exigent circumstances.