This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).



State of Minnesota,


Robert Chester Larson,

Filed October 26, 1999
Forsberg, Judge[*]

Dakota County District Court
File No. K1972776

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Robert J. Shane, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Robert C. Larson seeks reversal of the district court’s denial of a motion to suppress evidence of marijuana and related evidence seized in the search of appellant’s residence on grounds that issuance of the warrant was supported by evidence illegally obtained from a warrantless intrusion of the curtilage of appellant’s property and tainted consent to enter appellant’s residence. We affirm.


On December 9, 1997, at approximately 6:30 p.m., three Mendota Heights police officers were called to the Mendota Heights Motel to respond to a complaint of a strong odor of marijuana. Upon arriving at the motel, the officers immediately detected an unmistakable and extremely strong odor of marijuana. The officers drove around local streets to locate the source of the odor. After returning to the motel and observing that the wind was blowing from north to south, the officers proceeded around the north side of the motel and determined the smoke and odor were not coming from a motel room. The officers decided to continue their investigation by walking north toward appellant’s residence. Appellant owns and operates a greenhouse and nursery business on the same property where he keeps his residence, which is located directly north of the Mendota Heights Motel.

Proceeding north from the back of the motel, each officer described a similar path taken to appellant’s property in order to question him about the odor and smoke coming from his residence. First, the officers came upon an area used as a parking lot for appellant’s commercial trucks. Continuing north, the officers approached appellant’s nursery. The nursery is a rectangular area enclosed by a chain-link fence with a driveway running through it blocked by two sliding gates. Appellant’s garage and residence are directly east of the nursery. The area between the garage and the nursery is a paved driveway/walkway that leads to the door to the residence located on the north side of a breezeway connecting appellant’s garage and residence. Approximately 15 feet to the north of the residence and garage are appellant’s greenhouses.

At the time of the investigation, the gates blocked vehicular access to appellant’s residence via the driveway through the nursery area. Therefore, the officers proceeded north on foot toward appellant’s residence. In making their way from the north side of the motel to appellant’s residence, the officers testified that they took a path through some small plants and shrubs, onto the paved area between the nursery and the garage, and around the north side of the garage to the main door of the residence. The district court found that the area traversed by the police officers was open and not blocked by any fence or obstacle. After noticing the officers approaching, appellant met the police outside his residence. When the police questioned him about the smoke and odor, appellant told the police he was burning "prehistoric sticks," but later admitted they were "marijuana sticks."

Appellant then consented to a search of his residence. Gesturing the officers into his home, appellant led the officers through the kitchen and into the living room where they saw a 55-gallon garbage bag filled with marijuana leaves and stems and the same being burned in the fireplace. Believing what they observed to be a felony amount of marijuana, the officers arrested appellant and secured the residence. On the basis of the information and evidence discovered during their initial investigation and observations made in appellant’s residence, the police obtained a search warrant. Execution of the search warrant led to the seizure of approximately 5 kilograms of marijuana from appellant’s residence.

At a contested omnibus hearing, appellant’s motion to suppress the marijuana and related evidence from the search was denied. On August 18, 1998, after a bench trial on stipulated facts, appellant was convicted of a controlled substance crime in the third degree. Final judgment on the conviction was entered on October 13, 1998. Appellant filed a notice of appeal on December 29, 1998, and his sentence is being stayed pending this appeal.


A trial court’s factual determination bearing on a motion to suppress on Fourth Amendment grounds is reviewed under the "clearly erroneous" standard. State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quoting State v. Kvam, 336 N.W.2d 525, 528-29 (Minn. 1983)). On appeal from a pretrial suppression decision where the facts are not in dispute and the district court’s decision is a question of law, this court independently determines whether the evidence requires suppression as a matter of law. State v. Orthoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Appellant contends that the district court erred in denying his motion to suppress because any evidence discovered or observations made while on appellant’s property were tainted by the illegal warrantless entry and, therefore, cannot support the issuance of a search warrant.

1. Curtilage Determination

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The United States Supreme Court has extended Fourth Amendment protection to certain property adjacent to dwellings. See Oliver v. United States, 466 U.S. 170, 176-77, 179-80, 104 S. Ct. 1735, 1740-42 (1984) (explaining the concept of "curtilage"). However, such protection does not extend to areas that are not the setting for the intimate activities the Fourth Amendment was intended to shelter from government intrusion. Id. at 179-80, 104 S. Ct. at 1741-42 (explaining the "open fields" doctrine). The critical inquiry in determining protected curtilage is "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." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1140 (1987). In Dunn, the Supreme Court announced the following factors to be considered in making a curtilage determination: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. 480 U.S. at 301, 107 S. Ct. at 1139. However, the Court explained that it did not intend the factors to be a dispositive, mathematically precise formula defining curtilage. Id. at 301, 107 S. Ct. at 1139-40 (suggesting instead that the factors are analytical tools only to the extent they assist in determining whether the area is so intimately tied to the home itself that it is entitled to the same Fourth Amendment protections given to the home).

The district court found that the officers’ path to appellant’s door did not intrude upon curtilage. The district court stated that the area traversed by the officers was not "readily identifiable as part and parcel of the house" and was "not obstructed by fencing, plants, shrubs, or flowers in bloom." Additionally, the district court considered appellant’s contention that the garden was a natural extension of the fence and was intended as a privacy barrier. However, the physical layout of the property suggests that the area traversed by the police was the common means of approaching appellant’s residence when the access gates surrounding the nursery were closed. Moreover, the unobstructed path taken by the officers persuaded the district court to find that appellant had failed to demonstrate a sufficient expectation of privacy in the area to find a constitutional violation.

Nevertheless, appellant contends that the district court erred in applying the four factors announced in Dunn. Specifically, appellant argues that since the area is immediately adjacent to the home, enclosed by a six-foot chain-link fence and garden barrier, used for the intimate activities of domestic life, and protected from public observation by a garden, it is protected curtilage. Although each argument appropriately addresses a separate factor, appellant misconstrues the Supreme Court’s intention in announcing the four factors in Dunn. The factors were not intended as a dispositive, mathematically precise formula defining curtilage, but rather as analytical tools only to the extent they aid in determining whether the area is so intimately connected to the home that it deserves a home’s Fourth Amendment protection.

Because the district court applied appropriate case law to appellant’s arguments and the record supports its findings, we affirm the district court’s conclusion that the area traversed by the police officers was not curtilage entitled to Fourth Amendment protection.

2. Reasonable Police Conduct

Furthermore, appellant contends that the police officers developed probable cause to believe the marijuana smoke was coming from appellant’s chimney only after illegally entering appellant’s curtilage. Even assuming the area traversed by the officers was curtilage, the Minnesota Supreme Court has held that

police with legitimate business may enter the areas of the curtilage which 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, and in such a situation the police are free to keep their eyes open and use their other senses.

State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975) (citation omitted). In addition, Minnesota courts have held that walking up a driveway or walkway with the intent to inquire with a homeowner concerning a complaint is reasonable police conduct. See State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990); State v. Buchwald, 293 Minn. 74, 78, 196 N.W.2d 445, 448 (1972).

In denying appellant’s motion to suppress, the district court found that the principles established in State v. Crea were controlling. Because Crea allows police officers to enter curtilage that is impliedly open to public use to investigate and question a homeowner, the officers were legitimately on appellant’s property. Additionally, Minnesota courts have held that it is reasonable police conduct to use a walkway or driveway to approach a home to question its owner regarding a complaint. In such a situation, Crea permits police officers to keep their eyes open and use their other senses. Thus, the officers’ observations regarding the marijuana smoke and odor made en route to appellant’s door to question him were permissible.

In summary, the district court’s finding that the police officers’ path was not within the curtilage of the home is sustained and is supported by the record. Furthermore, Crea confirms that the officers were legitimately on appellant’s property and acted reasonably. Therefore, we affirm the district court’s conclusion that the police officers did not violate any Fourth Amendment interests during the investigation of appellant’s property.


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