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State v. Grunig

May 01, 2003



A respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.

Reversed in part and remanded.

Considered and decided by the court en banc without oral argument.

The opinion of the court was delivered by: Meyer, Justice


This appeal presents a discrete question of law—whether the state waived issues of a caretaker's actual or apparent authority to consent to a search assuming the state did not argue these issues to the district court and the issues were raised for the first time on appeal. The court of appeals held that the state waived them. We reverse.

Relatively few facts are necessary to analyze the issues presented in this case. Respondent, Brad Grunig, lived with Amy Herzog and her daughter in an apartment in New Ulm, Minnesota. They rented a garage that was not attached to the apartment. Dale Wurtzberger was the caretaker of the apartment building.

After receiving a complaint about odors emanating from Grunig's garage, Wurtzberger informed the police on August 3, 2000. Wurtzberger asked Corporal Losinski to accompany him on an inspection of the garage, in an attempt to find out what was causing the strange odor. Losinski asked Wurtzberger if Wurtzberger had permission to enter the garage. Wurtzberger responded that he could access the garage whenever he wanted. Wurtzberger had the key and opened the door. At the omnibus hearing, Wurtzberger admitted he did not know whether he had authority to enter the garage, and just assumed he did. He stated that on at least one other occasion he had opened Herzog's garage outside Herzog's presence, because she had locked her keys in the garage. Wurtzberger also stated that he does not go in and out of tenants' garages unless asked.

Once inside the garage, Losinski noticed a strong odor and saw evidence that the garage was being used as a methamphetamine lab. Based on what Losinski saw in the garage, the police obtained a warrant to search the garage, the apartment, and Herzog's car. All the materials necessary to make methamphetamine were present in the garage, including decongestant tablets, matchbooks, starter fluid, coffee filters, hot plates, and muriatic acid, although the police never discovered any finished methamphetamine. Officers arrested Grunig and Herzog and charged both with manufacturing and conspiring to manufacture methamphetamine. Based on a lack of evidence, the district court dismissed the count alleging Grunig had manufactured the drug.

At a joint omnibus hearing, both Grunig and Herzog attempted to suppress all evidence seized as a result of Losinski's initial warrantless entry into the garage. Arguing against suppression, the state relied on a theory of public safety to justify the entry and also mentioned that the officer believed the caretaker had permission to enter the garage. The state did not include an apparent or actual authority argument in its written memorandum supplementing its oral argument. The district court denied both defendants' motions to suppress, ruling that the search fell within an emergency or community caretaking exception, and also noted that "Mr. Wurtzberger did indicate he had permission and later he testified he assumed he could go in the garage, but there was nothing in writing." Herzog and Grunig were convicted in separate trials of the conspiracy charges. The court then sentenced Grunig to the presumptive sentence, seven years and two months in prison.

Grunig and Herzog filed separate appeals. See State v. Grunig, No. C0-01-1101, 2002 WL 1365632, at *2 (Minn. App. June 25, 2002); State v. Herzog, No. C3-01-802, 2002 WL 769215, at *2 (Minn. App. Apr. 30, 2002). Both alleged that the district court had erred in refusing to suppress the evidence. Grunig argued that the warrantless search was not justified by the emergency exception.*fn1 In Grunig's case, the court of appeals concluded that the district court should have suppressed the evidence obtained with the search warrant. Because the only evidence supporting Grunig's conviction was seized as a result of the officer's entry into the garage, the court of appeals reversed the conviction. The court held that the district court erred in finding the initial search met the community caretaker exception or emergency exception to the warrant requirement. Despite having requested supplemental briefs on the issue of actual or apparent authority, the court of appeals declined to address the apparent authority issue in Grunig's case, ruling that the state had waived those arguments.*fn2

We accepted review of whether the state waived consideration of the issues of actual or apparent authority in Grunig's case. We exercise de novo review when presented with a decision by the court of appeals not to address a legal issue. See In re Olson, 648 N.W.2d 226, 227-28 (Minn. 2002).

The waiver rule is an administrative rule dictating that appellate courts will not decide issues that were not raised in the trial court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). One purpose of the rule is to allow the trial court to correct any alleged errors before a jury verdict. See 24 C.J.S. Criminal Law at § 1682 (1989). Rule 29.04 of the Minnesota Rules of Criminal Procedure is an exception to the waiver rule that allows a "respondent, without filing a cross-appeal, to defend a decision or judgment on any ground that the law and record permit that would not expand the relief that has been granted to the respondent." Minn. R. Crim. P. 29.04, subd. 6. We have cited Rule 29.04 in allowing respondents appearing before this court to raise alternative arguments. See, e.g., State v. Larson, 389 N.W.2d 872, 875 n.5 (Minn. 1986).

Federal and state jurisdictions have a similar exception to the waiver rule. In federal court, the United States Supreme Court has explicitly addressed this issue and refused to apply the waiver rule to appellees in both civil and criminal cases. See Thigpen v. Roberts, 468 U.S. 27, 29-30 (1984) (ruling in a habeas corpus action that the Supreme Court "may affirm on any ground that the law and the record permit and that will not expand the relief granted below"); Smith v. Phillips, 455 U.S. 209, 215 n.6 (1982) (clarifying that respondent in a civil case could "defend the judgment below on any ground which the law and the record permit, provided the asserted ground would not expand the relief which has been granted"). Other state courts also allow appellees to argue new theories on appeal, and appellate courts to affirm on new grounds, as long as the law and record permits. See, e.g., People v. Koontz, 46 P.3d 335, ...

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