This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Frederick Larry Huotte,



Filed July 18, 2006


Hudson, Judge



Polk County District Court

File No. K5-04-001569


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


Gregory Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, Minnesota 56716 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of fifth-degree controlled-substance offense, arguing that the evidence used to convict him was improperly obtained by a warrantless search and seizure of garbage bags from his back yard.  Because we conclude that appellant had not relinquished his expectation of privacy regarding the garbage bags, we reverse.


In August 2004, an individual told a police officer that she bought methamphetamine the previous weekend from a person whose supplier the officer believed to be appellant Frederick Huotte.  On August 26, the police conducted surveillance of appellant’s home.  They observed several vehicles park in the alley behind the home and remain for about 30 minutes.  In October 2004, a confidential informant told a police officer about purchasing methamphetamine from appellant and said that appellant directed people to park behind his home.

About November 10, 2004, appellant put two garbage bags in his back yard.  The bags were near the front of a detached garage, about 20 feet from the house and 20 feet from the alley behind the property.  On November 17, 2004, the police photographed the garbage bags, entered appellant’s yard, and removed them.  The police testified that the garbage bags were not “in City of Crookston garbage bags” and were not “bags that would be picked up by garbage pickup.”

The next day, November 18, 2004, the police searched the bags.  They found methamphetamine paraphernalia and a powder residue that tested positive for methamphetamine.  The police obtained a search warrant based on the evidence from the garbage bags and, on November 19, searched appellant’s home and found additional evidence.

Appellant was charged with controlled substance crime in the fifth degree.  His motion to suppress the evidence was denied.  After a trial on stipulated facts, he was found guilty of controlled-substance crime in the fifth degree. 

Appellant challenges his conviction, arguing that the district court erred in denying his motion to suppress the evidence because the police violated his expectation of privacy by entering his yard and removing garbage bags that had not been set out for collection. 


In reviewing the denial of a pretrial motion to suppress evidence, this court independently reviews the facts and determines as a matter of law whether the district court erred in not suppressing the evidence.  State v. Goebel, 654 N.W.2d 700, 703 (Minn. App. 2002) (holding that there was no expectation of privacy in garbage bags “that had been set out for collection on the street at the end of the driveway in front of the residence”).   

It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.  Moreover, [the defendants] placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so.  Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, [the defendants] could have had no reasonable expectation of privacy in the inculpatory items that they discarded.


California v. Greenwood, 486 U.S. 35, 40–41, 108 S. Ct. 1625, 1628–29 (1988) (citations and quotation omitted).  Relying on Greenwood, Goebel concluded that “the expectation of privacy in garbage adjacent to a public street is eroded.”  Goebel, 654 N.W.2d at 704.  

It is undisputed that appellant’s garbage bags were on his private property and had not been set out for collection.  Goebel holds that this is the dispositive factor in finding an expectation of privacy in garbage:  “[t]he protection [State v. Oquist, 327 N.W.2d 587, 591 (Minn. 1982)] recognized extended to garbage on private property.  Subsequent[ly, State v. Dreyer, 345 N.W. 2d 249, 250 (Minn. 1984)] established that garbage placed on the curb for collection does not fall within that protection.”  Id.  Appellant’s testimony reflects this distinction.  He testified that, having left the bags in his yard, he did not anticipate anyone going through them, but that, “[i]f [he] would have transported them to the boulevard, [he] probably would have anticipated somebody getting them.”  Even if appellant abandoned the garbage in the bags he placed in his yard, he did not abandon his expectation of privacy in those bags.  See Oquist, 327 N.W.2d at 589–90 (issue is whether the expectation of privacy in the garbage, not the garbage itself, has been abandoned).

Appellant argues in the alternative that his garbage bags were within the curtilage of his house and come under Fourth Amendment protection.  “[C]urtilage is generally the area so immediately and intimately connected to the home that within it, a resident’s reasonable expectation of privacy should be respected.”  Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001).  “‘[T]he Fourth Amendment protects the curtilage of a house and . . . 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) (quoting United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139 (1987)).  Krech applied the four criteria set out in Dunn for resolving curtilage questions:  the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the use of the area, and “‘the steps taken by the resident to protect the area from observation by people passing by.’”  Id.  We conduct an independent review of the facts pertaining to these criteria.  See Goebel, 654 N.W.2d at 703 (this court independently reviews the facts when reviewing the denial of a pretrial motion to suppress evidence).

On the first factor, the officer who photographed the bags testified that they were about 20 to 25 feet from the alley behind the garage and about the same distance from appellant’s house.  The photographs also give an approximate indication of this distance.  Thus, appellant had left the bags roughly in the middle of his back yard, an area proximate to his home.

On the second factor, the photographs show that appellant’s back yard is enclosed on one side by a fence, on one side by his house, and on one side at least partially by his garage.  Thus, the back yard was enclosed on all except one of its four sides.  

On the third factor, appellant testified that he was not “that organized of a person” and that the area where he left the bags was used to store items he would eventually either put in orange bags to be collected as garbage or put in his garage.  The photographs show that the bags were roughly surrounded by a picnic table, a clothesline pole, and a windmill—all indications that the back yard was “immediately and intimately connected to the home.”  See Garza, 632 N.W.2d at 639. 

On the fourth factor, an officer testified that “There [were] actually several bags there.  We only took two of them.  There was garbage strewn all over the place. . . .”  The photographs show that the bags were in a cluttered area; appellant testified that “[a] lot of that clutter was going to go back in the garage.”  Appellant did not conceal the garbage bags any more than he concealed the other garbage, clutter, and miscellaneous items in his back yard, but the fact that the back yard was so crowded was itself a form of concealment.  In light of the four Dunn factors, the trash bags were in the curtilage of appellant’s home.[1]

Appellant’s expectation of privacy regarding his garbage bags is evident from the fact that he did not place the bags out for collection and placed them within the curtilage of his home.  The search and seizure of the bags was illegal, and the evidence that resulted from that search and seizure should have been suppressed.


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

[1] Because we determine that appellant had an expectation of privacy in the garbage bags both because he had not put them out for collection and because they were within the curtilage of his home, we do not address whether the police trespassed on his property when they seized the garbage bags.