This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota, City of Maple Grove,



Jason Gerard Czech,


Filed February 17, 1998


Schumacher, Judge

Hennepin County District Court

File No. 96105967

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

Paul D. Baertschi, Tallen & Baertschi, 4640 IDS Center, 890 South Eighth Street, Minneapolis, MN 55402-2224 (for respondent)

Stephen P. Thies, Ebbesen & Sarrazin, P.L.L.P., Post Office Box 127, Redwood Falls, MN 56283 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



This appeal is from a judgment of conviction for gross misdemeanor DWI. Minn. Stat. § 169.121, subds. 1(a), 3(c)(1) (1996). Appellant Jason Gerard Czech challenges the legality of the police entry into the hallway of his apartment building. We affirm.


Czech was charged with driving while intoxicated. Maple Grove police received a call from a citizen reporting a "possible drunk driver in a vehicle in the parking lot" of an apartment complex. They responded to the scene and were told by the citizen that a male had gotten out of a Chevy Blazer and stumbled, apparently intoxicated, to the door of one of the buildings, which he entered using a key, "walk[ing] to the top of the first landing and enter[ing] an apartment to the right." The officers saw tire marks near the Blazer indicating it had driven over the curb of the parking lot.

The police used a firebox key, installed at the direction of the fire department, to enter the locked apartment building. The citizen informant pointed out the apartment to them, and Czech's fiancée, the registered owner of the Blazer, answered the police knock on the door with Czech standing inside somewhere behind her. The officer noticed an odor of alcohol and Czech's slurred speech and saw he was unsure of his balance. Czech eventually agreed to come out of the apartment, where the citizen informant identified him and Czech failed the field sobriety tests.

The trial court denied Czech's motion to suppress the state's evidence and dismiss the complaint. Czech waived a jury trial and submitted the case for trial to the court, which found him guilty.


Czech argues that the officers' warrantless entry into the apartment building and their stationing themselves in the hallway outside his apartment violated his fourth amendment right to be free of unreasonable searches and seizures. The trial court disagreed, finding Czech had no reasonable expectation of privacy in the apartment building hallway.

When the facts relevant to a fourth amendment issue are not in dispute and the trial court's decision is a question of law, this court independently reviews the facts and determines as a matter of law whether the evidence need be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The fourth amendment prohibition against unreasonable searches and seizures extends only to those areas in which a person has a subjective expectation of privacy that society is prepared to recognize as reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 1628 (1988). Czech relies on cases from some jurisdictions holding that a hallway shared by tenants in an apartment building is, although a "common area," a space in which the tenants have a reasonable expectation of privacy. See, e.g., United States v. Carriger, 541 F.2d 545, 551 (6th Cir. 1976). Other courts, however, have reached the opposite conclusion. See, e.g., United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (no reasonable expectation of privacy in common apartment building hallway); cf. 1 Wayne R. LaFave, Search and Seizure § 2.3(b), at 477-78 (1996) (acknowledging split in authority). The Eighth Circuit Court of Appeals stated in Eisler:

The locks on the doors to the entrances of the apartment complex were to provide security to the occupants, not privacy in common hallways.

567 F.2d at 816.

The Minnesota Supreme Court has held that a police officer's entry into the hallway of a motel did not "impermissibly intrude upon defendant's reasonable expectation of privacy." State v. Buchwald, 293 Minn. 74, 77, 196 N.W.2d 445, 448 (1972). Although Buchwald involved a motel rather than an apartment building and the door to the hallway was apparently unlocked, the Buchwald holding is persuasive. The Buchwald court noted that the motel hallway was "shared with other occupants of the premises." Id. at 78, 196 N.W.2d at 448.

We also find persuasive the Eighth Circuit's distinction in Eisler between security from intruders and privacy. 567 F.2d at 816. An apartment hallway is an area from which only some are excluded, not all those others that a reasonable person would want to be excluded from their most intimate activities. An apartment resident who would be exposing his activities to his fellow tenants in the common hallway, has no reasonable expectation of privacy in that common area.

Czech also argues that police effectuated an in-house warrantless arrest, in violation of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980) by questioning him across the threshold of the apartment. We disagree. There was no physical crossing of the threshold. Even if words spoken across the threshold could violate Payton, there are no facts here indicating Czech was "seized" when police, with no show of force, asked him to step outside. See generally State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (arrest occurs when under all the circumstances a reasonable person would believe he was not free to leave); cf. United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980) (officers standing at doorway with drawn guns so thoroughly controlled defendant's movements inside that a Payton violation occurred), aff'd on other grounds, 457 U.S. 537, 102 S. Ct. 2579 (1982).