This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Gary A. Hohneke,




Filed November 23, 2004


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 01098714



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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Gary A. Hohneke challenges the district court's finding on remand that four detached "garages" were not within the curtilage of his apartment.  We affirm.


            In 2001 while on patrol, Richfield police officer Andrew Gifford observed Hohneke engaging in what Gifford thought was a possible theft from a "garage" structure within an apartment complex.  When Gifford attempted to question Hohneke, he ran.  Gifford eventually caught and arrested him.  When Gifford searched Hohneke, he found an ID, two baggies containing a white powdery substance, a crack pipe, marijuana, what appeared to be a tab of acid, and over $2,400 in two different wallets. 

            After the arrest, Hohneke stated that he lived in the apartment complex and that the garage Gifford saw him leaving belonged to him.  Gifford spoke to the apartment complex manager, who confirmed that Hohneke was a resident and rented four garages in the complex. 

Officer Gregory Peterson obtained a nighttime search warrant for Hohneke’s apartment and his four garages.  The search was conducted at approximately 11:30 p.m.  Police discovered 13.4 grams of cocaine and drug paraphernalia in Hohneke's apartment and 289.3 grams of cocaine in one of his garages.

            The state charged Hohneke with five counts of controlled-substance crime.  Four of the five counts were dismissed before trial, leaving only one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021 subd. 2(1) (2000).  After a trial before the district court on stipulated facts, the court found Hohneke guilty and sentenced him to 72 months in prison.

Hohneke appealed his conviction to this court.  This court concluded Hohneke was not unlawfully seized, his statements should not have been suppressed, and there was an adequate showing of probable cause to support issuance of the search warrant.  State v. Hohneke, No. C7-02-1400, 2003 WL 21146814, at *1 (Minn. App. May 20, 2003).  But this court also concluded that the evidence seized in Hohneke's apartment must be suppressed because the application for nighttime authorization was the type of conclusory language that the supreme court has determined is inadequate to support a nighttime authorization.  Id.

Because the record failed to adequately describe the relative location of the garages, we remanded the case to the district court "to establish whether the garages are within appellant’s curtilage."  The district court determined Hohneke's garages were not within his apartment's curtilage.    


            This case was originally remanded to the district court to determine whether Hohneke's garages were within his apartment's curtilage because a nighttime search of a dwelling's curtilage involves the same concerns as a search of the home itself.  See Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001) (stating objectives behind heightened showing for unannounced entry "are implicated when a building within the curtilage of a dwelling is searched, particularly with regard to minimizing damage and avoiding a violent response of an owner to a stranger forcing entry into the building"); see also Oliver v. United States,466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984) (stating "curtilage . . . [is] considered part of the home itself for Fourth Amendment purposes")

Much like a district court's finding of probable cause, the extent of a dwelling's curtilage is a mixed question of law and fact.  See State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (probable cause standard); United States v. Johnson, 256 F.3d 895, 912 (9th Cir. 2001) (per curiam) ("There is no conceptual difference between calling an area 'curtilage' and telling an officer he had 'probable cause' or 'reasonable suspicion.'"); see also United States v. Diehl, 276 F.3d 32, 37-38 (1st Cir. 2002)(concluding curtilage is constitutional question subject to two-step standard of review in which ultimate determination is one reviewed de novo) cert. denied 537 U.S. 834 (2002); Wisconsin v. Martwick, 604 N.W.2d 552, 558 (Wisc. 2000) (holding same). Appellate courts review the district court's factual findings under the clearly erroneous standard, but independently review the district court's legal determinations.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).   

The district court determined Hohneke's garages were not within the curtilage after finding that all four factors outlined in United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134 (1987), weighed against a finding of curtilage.  Under Dunn the following four factors can be used to determine the extent of a home's curtilage:

[T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.


State v. Krech, 403 N.W.2d 634, 636-37 (Minn. 1987) (quotation omitted).     

The district court's findings on each factor are questions of fact that this court will not reverse unless clearly erroneous.  See Martwick, 604 N.W.2d at 558 (holding Wisconsin courts "first review a court's evaluation of the individual Dunn factors for clear error).  Hohneke has made no argument that any of the district court's findings are clearly erroneous and we deem the issue to be waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed on appeal are waived); see also Leininger v. Anderson, 255 N.W.2d 22, 26-27 (Minn. 1977) (stating appellant bears burden to show factual findings are clearly erroneous).

In addressing the "proximity" factor, the district court found Hohneke's "garages were not attached to the apartment building.  To get to the garages from . . . Hohneke's apartment one would have to go through a common hallway, down a level, through a common exit, over an outdoor common area, and across a parking lot."  We need not consider any additional factors to conclude that Hohneke's garages are not within the curtilage, for as the supreme court has stated the Dunn factors are only "useful analytical tools" to determine "whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection."  Krech, 403 N.W.2d at 637 (quotation omitted).

Curtilage is "the land immediately surrounding and associated with the home."  Oliver, 466 U.S. at 180, 104 S. Ct. at 1742 (emphasis added).  Further, while it is well settled that a garage connected to a single-family residence is within the home's curtilage, it is equally well settled that an apartment's curtilage is much more limited than that of a single-family residence.  Tracht v. Comm'r Pub. Safety, 592 N.W.2d 863, 864 (Minn. App. 1999) (holding garage attached to single family house is within curtilage), review denied (Minn. July 28, 1999); Krech, 403 N.W.2d at 637 (stating "'it 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'" (quoting 1 W. LaFave, Search and Seizure § 2.3(f) at 414 (1987))). 

Hohneke is incorrect in his assumption that the district court erred in using the Dunn factors.  The Supreme Court in Dunn stated that, "we believe that curtilage questions should be resolved with particular reference to [these] four factors."  480 U.S. at 301, 107 S. Ct. at 1139.  Numerous courts have applied the Dunn factors to determine if a structure, including garages, is within a home's curtilage.  See, e.g., United States v. Cannon, 264 F.3d 875, 880-81 (9th Cir. 2001) (applying Dunn factors to determine if storage rooms were within curtilage of rental unit); United States v. Reilly, 76 F.3d 1271, 1276-80 (2nd Cir. 1996) (applying Dunn factors to determine if cottage was within home's curtilage); Daughenbaugh v. City of Tiffin, 949 F.Supp. 1315, 1320-21 (N.D. Ohio 1996) (concluding garage was not within home's curtilage after applying Dunn factors).

Furthermore, Hohneke himself suggested that the district court apply the Dunn factors and thus, there was no argument presented to the district court that it was impermissible to use the Dunn factors to determine whether Hohneke's garages were within his apartment's curtilage.  Matters not argued to or considered by the district court will not be considered on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

We note that the question before us is not whether Hohneke had a reasonable expectation of privacy in his garages.  See State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (concluding renter had expectation of privacy in storage unit).  While a reasonable expectation of privacy is normally sufficient to answer a Fourth Amendment challenge, it is the special protection afforded a home that will lead to the suppression of evidence resulting from an improper nighttime search even when there is a sufficient showing of probable cause to support the issuance of a search warrant.  See Garza, 632 N.W.2d at 639 (stating objectives behind heightened showing for unannounced entry "are implicated when a building within the curtilage of a dwelling is searched, particularly with regard to minimizing damage and avoiding a violent response of an owner to a stranger forcing entry into the building").  The sole question before us is whether Hohneke's garages are within the curtilage and therefore fall under the "umbrella" of Fourth Amendment protections afforded to his home.  We conclude they are not.


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