This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ross Michael Lawrence,
Filed May 24, 2005
Robert H. Schumacher, Judge
Dakota County District Court
File No. K6041207
Mike Hatch, Attorney
General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Vance B.
Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560
West Highway 55, Hastings, MN 55033 (for respondent)
Jeffrey C. DeGree, Degree Law Office, 212 Third Avenue
North, Suite 545, Minneapolis, MN 55401 (for appellant)
Considered and decided by Hudson,
Presiding Judge; Schumacher, Judge;
and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
from his conviction for a fifth-degree controlled-substance offense, appellant
Ross Michael Lawrence challenges the district court's pretrial order denying
his motion to suppress evidence, arguing the search warrant was not supported
by probable cause and the police illegally seized his garbage. We affirm.
March 2004, a confidential informant told the Dakota County Drug Task Force
that an individual called "Roscoe" – who was subsequently identified
as Lawrence – was selling methamphetamine from
his residence in South St. Paul. The task force agent contacted a South St. Paul police
officer who had also received information that a "Roscoe" was selling
methamphetamine. On April 7, South St. Paul police officer Steven Gravem retrieved the
household garbage Lawrence
had left in a container outside his residence for pickup by a contracted
sanitation service; police searched the garbage and discovered items containing
methamphetamine residue. On the basis of
this discovery, and the fact that Lawrence
had two previous controlled-substance convictions, the Dakota County Sheriff's
Department applied for and obtained a search warrant.
Based upon items
discovered in the search, the state charged Lawrence with fifth-degree possession of a
controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(1), 3(b)
(2004) and possession of drug paraphernalia, in violation of Minn. Stat. § 152.092
(2004). Lawrence moved to suppress the evidence,
arguing the search warrant lacked probable cause and the garbage seizure was
unconstitutional. The district court
denied the motion. The parties then
agreed to submit the matter to the court on stipulated facts pursuant to the
procedure adopted in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The court found Lawrence guilty as charged.
D E C I S I O N
argues the information provided by the confidential informant did not provide
probable cause to issue the search warrant because the state did not establish
the informant's reliability. See State v. Munson, 594 N.W.2d 128, 136
(Minn. 1999) (holding determination of whether information from confidential
informant is sufficient to establish probable cause is determined by examining
totality of circumstances, particularly "credibility and veracity of the
informant"). But the informant's
information was not the basis of the probable-cause determination. The record is clear that although the
confidential informant gave the information leading to the garbage search, probable
cause for the warrant was provided by the discovery of methamphetamine residue
garbage. This discovery is sufficient by
itself to support a finding of probable cause.
See State v. Papadakis, 643 N.W.2d 349, 356 (Minn. App.
2002) (holding discovery of controlled substances in suspect's garbage
"provided an independent and substantial basis for the district court's
probable cause determination" in granting search warrant).
argues that because the garbage can he set out for pickup by the sanitation
service was within the curtilage of his home at the time of the seizure, the
methamphetamine residue therein was obtained in violation of his Fourth
Amendment rights and may not be used as a basis for probable cause.
"[T]he Fourth Amendment
protects the curtilage of a house[;] the extent of the curtilage is determined
by factors that bear upon whether an individual reasonably may expect that the
area in question should be treated as the home itself." State v. Krech, 403 N.W.2d 634, 636 (Minn. 1987) (quotation
omitted). Whether an area constitutes a
protected curtilage depends upon the proximity of the area in question 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. Id at
636-37. Certain areas surrounding a home
are "impliedly open to use by the public.
Thus, police may walk on the sidewalk and onto the porch of a house and
knock on the door if they are conducting an investigation and want to question
the owner." Id. at 637 (quotation omitted).
Here, Lawrence maintains that because the police
presumably had to take steps onto his property to retrieve the garbage from the
container, his curtilage was invaded and the search was illegal. We disagree.
The officer who seized the garbage on April 7 testified that on that day
the garbage container had been moved away from the home to an unenclosed area closer
to the alley and positioned in anticipation of its weekly scheduled collection
such that there is no evidence Lawrence
took any steps to protect the area or the container from passers-by. Under Krech,
not have a reasonable expectation of privacy in the container.
We further observe that the
container's presence within the curtilage of Lawrence's home would not automatically
render the search illegal. In United
States v. Shanks, a case with facts similar to those here, the court stated: "Even assuming that the garbage
containers were within the curtilage of [Lawrence's]
must nonetheless] show that the district court's additional finding (that he
did not hold a reasonable expectation of privacy in the garbage) is clearly
erroneous. Indeed, the mere intonation
of curtilage does not end the inquiry."
97 F.3d 977, 979 (7th Cir. 1996), (internal citation omitted).
Here, the district court found Lawrence had no
reasonable expectation of privacy in the trash in light of the circumstances,
manner, and location of the container's placement. This finding is not clearly erroneous. The district court did not err in denying Lawrence's motion to
suppress the evidence.