Brown County District Court File No.KX-00-513
Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and
The opinion of the court was delivered by: G. Barry Anderson, Judge
Concurring specially, Harten, Judge
This appeal from a conviction for conspiracy to manufacture methamphetamine was remanded to this court by the supreme court for reconsideration in light of State v. Licari, 659 N.W.2d 243 (Minn. 2003). Because we conclude the state has not shown the caretaker had actual or apparent authority to consent to the warrantless search, we reverse.
Respondent Brad Grunig shared an apartment and an unattached garage with his girlfriend, Amy Herzog. Grunig lived at the apartment and stored his personal belongings in the garage.
On August 3, 2000, Dale Wurtzberger, the caretaker of the apartment complex, received a complaint from another tenant that an odor was coming from Herzog's garage. Wurtzberger, who had previously passed on another complaint of an odor coming from Herzog's apartment, contacted the police and reported the complaint. Corporal Gerald Losinski, a police officer, met Wurtzberger at the apartment complex, where Wurtzberger used a key to open the garage, and the officer entered. Upon entry, the officer saw items used to manufacture methamphetamine, and police later obtained a warrant to search the garage.
Wurtzberger testified at the consolidated omnibus hearing that he had a key to Herzog's garage and he thought he had permission to enter the garage. On cross-examination, he indicated he had no knowledge of Herzog's written lease. Wurtzberger testified, however, that he assumed he had permission to open the garage, although he did not have it in writing. Wurtzberger admitted that he was uncertain of his "right to go into that garage." Wurtzberger also admitted that he didn't "go in and out" of the tenants' garages unless asked to do so.
The police officer who made the warrantless entry testified that he asked Wurtzberger if he had "permission or consent to enter the garage." The response from Wurtzberger was that "[h]e can go in when he wants to."
The district court denied the defense motion to suppress the evidence, concluding that there was a "compelling urgency" for the officer to enter the garage, and that the emergency exception to the warrant requirement applied. The court did not address whether Wurtzberger had actual or apparent authority to consent to a search of Herzog's garage. On appeal, this court reversed, concluding that neither the community-caretaker nor the emergency exception to the warrant requirement applied. State v. Grunig, No. C0-01-1101 (Minn. App. June 25, 2002), rev'd in part, remanded, 660 N.W.2d 134 (Minn. 2003). The supreme court granted further review and reversed this court's conclusion that the state waived the issue of Wurtzberger's actual or apparent authority. Id. at 137. The court remanded for reconsideration of Wurtzberger's actual or apparent authority to consent to the search of the garage, consistent with the court's recent decision in State v. Licari, 659 N.W.2d 243 (Minn. 2003).
The parties have submitted supplemental briefs addressing the effect of Licari on this appeal. "When reviewing pretrial orders on motions to suppress evidence, [appellate courts] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Both actual and apparent authority, as part of the question whether police obtained valid consent, are legal issues to be reviewed de novo on appeal. See State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998) (holding, without deference to the district court, under a "totality of the circumstances" test, that police obtained consent from a person with apparent authority). The supreme court in Licari treated the question of actual authority as a legal issue by not granting any ...