This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-1765

State of Minnesota,

Respondent,

vs.

Melvin Johns,

Appellant.

Filed June 11, 1996

Affirmed

Kalitowski, Judge

Dakota County District Court

File No. K394982

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)

Bradford Colbert, Assistant State Public Defender, William Mitchell College of Law, 875 Summit Avenue, LEC 304, St. Paul, MN 55015 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Melvin Johns challenges his convictions for first-degree controlled substance and conspiracy offenses based on: (1) the legality of the police officer's search; and (2) the district court's refusal to allow his public defender to argue lenity to the jury. We affirm.

D E C I S I O N

I.

On review, this court accepts a trial court's findings of fact on Fourth Amendment issues, unless clearly erroneous, and independently applies Fourth Amendment case law to the facts so found. State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992) (citing State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988)), review denied (Minn. June 1, 1992).

1. Standing

The Constitutions of both the United States and Minnesota protect citizens from unreasonable search and seizure. U.S. Const. amend. IV; Minn. Const. art. I, ' 10. The initial inquiry in every search and seizure case is whether the defendant has standing to object to the search or seizure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Standing exists when the person challenging the search has a reasonable expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); id.

This court recently held Johns's co-conspirator lacked standing to challenge the officer's search because the motive for his presence in the apartment at issue was illegal business rather than social interaction. State v. Carter, 545 N.W.2d 695, 698 (Minn. App. 1996). Here, because we conclude Johns's Fourth Amendment claims fail on the merits, we do not determine whether Johns had standing to challenge the officer's search.

2. Fourth Amendment challenges

Assuming standing exists, Johns raises Fourth Amendment challenges based on invasion of the curtilage and the officer's visual search of the apartment.

The Fourth Amendment protects the home and its curtilage from unreasonable searches and seizures. Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984). Police may, without a warrant, enter the areas of the curtilage impliedly open to use by the public. State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975). In doing so, they are free to keep their eyes open and use their other senses. Id. Once police step off the area open to public use without a warrant, the test becomes whether the police acted reasonably. Id. at 346, 233 N.W.2d at 740. In determining the reasonableness of the officers' search, the reviewing court considers: (1) the intrusiveness of the search; (2) whether the officers had probable cause to believe evidence of criminal activity would be found; and (3) whether the officers would have difficulty obtaining a search warrant at that hour. Id. at 346-47, 233 N.W.2d at 740.

Here, a confidential informant told the officer he had just seen through a window of the apartment at issue three persons packaging drugs. To corroborate the informant's story, the officer walked to the apartment complex, stood 12 to 18 inches from the window and observed the three persons inside packaging drugs at the kitchen table for approximately 15 minutes.

We conclude the officer acted reasonably by walking up to the window and making the initial glance inside and by continuing to look in the window in an attempt to corroborate the informant's story. First, the supreme court has stated 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.

State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (quoting 1 W. LaFave, Search and Seizure ' 2.3(f) at 414 (1987)). Second, the officer's search was visual, never disturbing the persons inside the apartment and not requiring the officer to remove obstacles to see through the window. Third, because of the informant's detailed firsthand description of the drug activity, the search is entitled to greater weight under the totality of the circumstances test for determining probable cause. See Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330 (1983). Fourth, the officer sought search warrants immediately and procured such warrants in the middle of the night before physically searching the apartment. Accordingly, we conclude the visual search was part of a logical in-the-field investigative technique, to which this court accords deference. See State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990). Because no Fourth Amendment violation occurred, the district court properly admitted the evidence against Johns.

II.

The supreme court has determined the jury in a criminal case has the power of lenity, that is, the power to acquit despite the law and the facts. State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). A defendant does not, however, have the right to an instruction informing the jury of its power of lenity. Id. at 562. We conclude the district court did not err in refusing to allow defendant's counsel to argue lenity to the jury in opening argument when the court had already determined the legality of the officer's actions through the omnibus hearing. See id. (referring approvingly to United States v. Brown, 548 F.2d 204, 210 (7th Cir. 1977), which held the trial court may bar a defense attorney from arguing lenity to the jury).

Affirmed.


Footnotes

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