Roger S. Van Heel, Stearns County Attorney, Janis L. Hovda, Assistant Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for Appellant County)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Respondent T.M.M.)

Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.

The state appeals from a pretrial order suppressing statements and evidence obtained in a search and seizure and dismissing the case against T.M.M., a juvenile, for lack of probable cause. Because we conclude that T.M.M. has standing to claim Fourth Amendment protection and the search was impermissible, we affirm.

The state argues that T.M.M did not have standing to bring a motion to suppress evidence obtained from a friend's apartment where he had been staying as a guest. In order to claim the protection of the Fourth Amendment, T.M.M. must make two showings:

First, he * * * must show a subjective expectation of privacy, and second, he * * * must show that this expectation was reasonable "in light of longstanding social customs that serve functions recognized as valuable by society."

State v. Carter, 569 N.W.2d 169, 174 (Minn. 1997) (quoting Minnesota v. Olson, 495 U.S. 92, 98, 110 S. Ct. 1684, 1689 (1990)). Clearly, T.M.M. had a subjective expectation of privacy. See Carter, 569 N.W.2d at 174. T.M.M. had permission to be in the apartment from both his friend, A.U., and her mother. T.M.M. had spent the previous night at the apartment, and he was in A.U.'s bedroom with the door closed when police officers arrived at the apartment.

The state argues that T.M.M.'s expectation was not the type that society is prepared to recognize as reasonable because he allegedly was a runaway at the time of the police search. Whether or not he was a runaway, he must show by a totality of circumstances that his subjective expectation was one which society would recognize as reasonable. See id. In Olson, the Supreme Court decided that staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. 495 U.S. at 98, 110 S. Ct. at 1689. In Carter, the Minnesota Supreme Court, in interpreting Olson, explained that "what does control * * * is the nature of the relationship between the property possessor and the person alleging the privacy interest." Carter, 569 N.W.2d 176. The Carter court stated:

[S]ociety recognizes as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity.

Id.

We conclude that Carter is controlling in this case and that T.M.M.'s expectation of privacy was reasonable, despite his possible status as a runaway. See id. at 176. A.U. invited T.M.M. into her apartment to spend the night[1] because T.M.M. needed a safe place to stay. Society recognizes as valuable A.U.'s right to invite into her home a person who needed shelter and safety. Thus, T.M.M. had a legitimate expectation of privacy and had standing to bring a motion to suppress the statements and evidence discovered as a result of the search of A.U.'s residence.

The validity of consent is a fact question to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 249-50, 93 S. Ct. 2041, 2059 (1973). The totality of the circumstances includes "the nature of the encounter, the kind of person the defendant is, and what was said and how it was said." State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). We will defer to a trial court's factual findings unless clearly erroneous. See State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987).

Here, the officers entered A.U.'s apartment with consent; however, they did not tell A.U. that they suspected T.M.M. might be in the apartment. Once inside the apartment, one of the two officers asked A.U. for consent to open the bedroom door. She responded by asking if a warrant was required. The officer told her, "No, not for this" and persisted in seeking consent. A.U. made no verbal reply to these repeated requests; she simply shrugged her shoulders.[3] Eventually, one officer opened the door to the bedroom where T.M.M. was found. From the totality of the circumstances, we agree with the trial court that A.U. never voluntarily consented to a search of the apartment. A.U.'s responses were "an effort, under intimidating circumstances, to fend off a search with equivocal responses." State v. George, 557 N.W.2d 575, 581 (Minn. 1997).

We also agree with the trial court's conclusion that no exigent circumstances justified the search. Exigent circumstances exist when there is a risk of danger to police. Olson, 495 N.W.2d at 100, 110 S. Ct. at 1690. T.M.M. had been in the apartment since the night before the search. The officers spent some time in the apartment with no indication of concern for their safety. There was no concern that T.M.M. was in possession of a weapon. "Conduct that would constitute an illegal search does not become something less merely because the police had reasonable suspicion and embarked on a

search of limited intrusiveness." Carter, 569 N.W.2d at 178 (footnote omitted). Thus, the search was unreasonable.

Affirmed.

[1.] A.U. had authority to invite T.M.M. into her apartment. See Wayne R. LaFave, Search and Seizure, § 11.3(a) at 124 (3d ed. 1996) (permission to be a guest may be given by offspring who reside in home).

[2.] The state could have argued that the child detention statute permitted a warrantless entry and search of the apartment. See Minn. Stat. § 260.165, subd. 1(c)(1) (1996); State v. Johnson, 423 N.W.2d 100, 101 (Minn. App. 1988). However, at the time of entry, police were not looking for T.M.M.; they were looking for evidence relating to a burglary. Furthermore, the officers had no basis, other than a hunch, for believing T.M.M. was in the apartment.

[3] The state acknowledges that the officer interpreted this "noncommittal behavior" as neither consent nor lack of consent.