This opinion will be unpublished and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

A04-1871

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ross Michael Lawrence,

Appellant.

 

 

Filed May 24, 2005

Affirmed

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

On appeal 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.

FACTS

In 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

1. Lawrence 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 in Lawrence's 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).

2. Lawrence 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, Lawrence did 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] home, [Lawrence 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.

Affirmed.