Minn. Stat § 480A.08, subd. 3 (1998).

State of Minnesota,

Respondent,

vs.

Eugene L. Gebeke,

Appellant.

Clay County District Court

File No. K4-98-776

Mike Hatch, Attorney General, Nancy Bode, Margaret Chutich, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Lisa Borgen, Clay County Attorney, 807 11th Street North, Moorhead, MN 56561-0280 (for respondent)

L. Patrick O’Day Jr., 1024 Third Avenue South, Fargo, ND 58107 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.

LANSING, Judge

The district court denied Eugene Gebeke’s suppression motion and, on stipulated facts, found him guilty of third-degree controlled substance crime. We conclude that the police officer who observed suspicious activity through the window of a business establishment did not violate Gebeke’s reasonable expectation of privacy and that the ensuing search was incident to a lawful arrest. We affirm.

The material facts are not in dispute. Moorhead police officer Brian Dahl, patrolling a commercial area about midnight, saw lights on inside an auto repair business. Dahl frequently patrolled the area and knew the business was normally closed at that hour. He decided to investigate and parked his car in the repair shop’s lot, walked up to the closed garage doors, and peered through a small window of one of the garage doors.

Dahl saw a man, later identified as Eugene Gebeke, talking with someone. He observed Gebeke push his right index finger into his nostril. Gebeke repeated the motion with his left hand, then moved his hand across his nose and sniffed a couple of times with his head tilted back. Dahl also saw Gebeke put some type of baggie in his pocket.

Believing that he had witnessed drug activity, Dahl returned to his patrol car and called for assistance. Immediately after the backup officer arrived, Gebeke and another person left the building. The officers approached them, and Dahl asked Gebeke what was happening inside the business. When Gebeke did not respond, Dahl asked him to identify himself. Gebeke refused to produce identification and continued walking. Dahl tried to walk alongside, but Gebeke pushed him away. Dahl continued to question Gebeke unsuccessfully.

When Gebeke repeated his attempts to push Dahl away, Dahl grabbed his arm and directed him to put his hands on the hood of a parked car. The officers told him he was under arrest for disorderly conduct and obstructing legal process. The officers removed his wallet to look for identification and found a large amount of money and a bindle that held a powdery white substance. In his right pocket they found a baggie containing a powdery white substance, later determined to be cocaine. Gebeke appeals the denial of his motion to suppress the results of the search.

On undisputed facts, a district court’s pretrial suppression ruling is a question of law.[1] Before asserting a constitutional right to suppress evidence, a defendant must show that he is "a proper party to assert the claim of illegality and to seek the remedy of exclusion."[2] To qualify as a proper party, the defendant must demonstrate an adversary interest in the outcome that is based on an alleged violation of his rights, rather than the violation of a third party’s rights.[3]

As a defendant against whom the evidence is offered, Gebeke undeniably has an adversary interest in the outcome. Whether the interest is based on a violation of the defendant’s rights turns on whether the disputed search infringed on an interest protected by the Fourth Amendment, in which the defendant had a legitimate expectation of privacy.[4] To establish a protected interest, a defendant must demonstrate (1) "a subjective expectation of privacy," and (2) that this expectation "was reasonable in light of ‘longstanding social customs that serve functions recognized as valuable by society.’"[5]

Fourth Amendment analysis draws a distinction between a privacy expectation in a public business and a privacy expectation in a home.[6] As a general rule, "business and commercial premises are not as private as residential premises."[7] Although Gebeke declared a subjective expectation of privacy in the auto repair shop, which he was visiting while the shop’s owner was present, he has failed to demonstrate that he "took advantage of that opportunity for privacy."[8] The windows of the repair shop were not covered and the activity inside was open to public view. Gebeke’s failure to shield himself from being observed in the open area of the repair shop does not support his claim of a subjective expectation of privacy.

These same facts also defeat Gebeke’s claim that a privacy expectation is reasonable. Dahl observed the suspicious activity by looking inside the windows of a business generally open to the public.[9] Nothing in the facts indicates that the business interior is normally kept from public view or that any socially valuable custom would be preserved by recognizing a reasonable right of privacy in this public space.[10] We agree with the district court’s analysis that Gebeke failed to demonstrate either a subjective or objective expectation of privacy in the shop area of a repair business generally open to the public. Dahl’s observations of Gebeke’s activities in this space did not infringe on an interest protected by the Fourth Amendment.

Gebeke also challenges the search of his person that resulted in the retrieval of the cocaine. We review de novo a district court’s determination of "probable cause as it relates to warrantless searches."[11] An officer may conduct a warrantless search incident to arrest.[12] The permitted search may precede an arrest if the officer has probable cause to arrest at the time of the search.[13] Probable cause to arrest, however, must be based on information obtained before the search and cannot be based on the search results.[14] "The test of probable cause to arrest is whether the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed."[15]

The district court found that Dahl had objective probable cause to arrest Gebeke for a controlled substance violation. Dahl witnessed Gebeke push an index finger into each nostril, sniff or snort with his head tilted back, and place a baggie in his pocket. These actions provided probable cause to arrest Gebeke for possession of a controlled substance. Gebeke asserts probable cause did not exist because he could have been inhaling something other than drugs, such as "nasal spray, antihistamines, or smelling salts." Probable cause does not require omniscience, only that a reasonable person observing the actions would form an honest and strong suspicion that Gebeke was engaged in criminal activity.

We reject Gebeke’s claim that Dahl’s assessment of whether he had probable cause is dispositive. The test for probable cause is objective rather than subjective.[16] An objective examination of the facts substantiates that Dahl had probable cause to arrest Gebeke for a controlled substance crime.

[2] State v. Carter, 569 N.W.2d 169, 173 (Minn. 1997), rev'd on other grounds, Minnesota v. Carter, 119 S. Ct. 469 (1998).

[3] Id. at 174.

[4] Rakas v. Illinois, 439 U.S. 128, 140-43, 99 S. Ct. 421, 429-30 (1978).

[5] Carter, 569 N.W.2d at 174 (quoting Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 1689 (1990)).

[6] Carter, 119 S. Ct. at 474.

[7] 1 Wayne R. LaFave, Search and Seizure § 2.4(b), at 531 (3d ed. 1996).

[8] United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997), cert. denied, 118 S. Ct. 434 (1997).

[9] See Dickens v. Lewis, 750 F.2d 1251, 1254 (5th Cir. 1984) (person generally has no legitimate expectation of privacy in the premises of a business belonging to another); State v. Richards, 552 N.W.2d 197, 204-05 (Minn. 1996) (business owner, who had no workspace at storefront business and had not made an effort to keep items private, could not claim protection of the Fourth Amendment); see also Carter, 119 S. Ct. at 473 (person "merely present with the consent of the householder" may not claim protection of the Fourth Amendment).

[10] See People v. Gomez, 632 P.2d 586, 591 (Colo. 1981) (en banc) (no legitimate expectation of privacy when activity could be viewed through window "from a sidewalk area used as a common entrance").

[11] In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citation omitted).

[12] Id. at 694-95.

[13] Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S. Ct. 2556, 2564 (1980); State v. White, 489 N.W.2d 792, 795 n.2 (Minn. 1992).

[14] Smith v. Ohio, 494 U.S. 541, 542-44, 110 S. Ct. 1288, 1290 (1990).

[15] G. M., 560 N.W.2d at 695 (citation omitted).

[16] State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983); see White, 489 N.W.2d at 794 ("[T]he issue is whether there was objective probable cause to arrest.").