County District Court File No. 60-CR-13-1873
Swanson, Attorney General, St. Paul, Minnesota; and Greg
Widseth, Polk County Attorney, Scott A. Buhler, Assistant
County Attorney, Crookston, Minnesota (for respondent)
D. Ellenbecker, St. Cloud, Minnesota (for appellant)
Considered and decided by Bratvold, Presiding Judge;
Bjorkman, Judge; and Hooten, Judge.
individual who is not on probation but knowingly resides with
a probationer has a diminished expectation of privacy in
common areas of the residence shared with the probationer. A
legitimate probation-based search of such shared areas does
not violate Fourth Amendment rights even if the search is
done over the objection of the individual who is not on
appeal from his felony convictions of felon in possession of
a firearm and receiving stolen property, appellant claims
that the district court erred in failing to suppress evidence
recovered during a search by probation officers and other law
enforcement-over his objection and without a warrant-of a
residence he shared with two felons whom he knew were on
probation. Because the record does not support
appellant's claim that, as a non-probationer, his Fourth
Amendment rights were violated during the search, we affirm.
Joshua Micheal Bursch shared a residence in Polk County with
his brother and Jacob Syverson, both of whom were on felony
probation and had signed probation agreements that provided
their consent to warrantless searches of their residence by
probation officers. While Bursch was a felon, he was not on
probation during the time period relevant to this appeal.
Nathan Nelson of the Crookston Police Department received a
call from a concerned citizen who believed that persons
living at the residence were in possession of stolen goods.
The matter was later referred to Deputy Matthew Hitchen of
the Polk County Sheriff's Office, who was able to confirm
that Bursch, his brother, and Syverson were living at the
residence. Upon learning that Bursch's brother and
Syverson were both on probation, Hitchen contacted the
probation officer for Bursch's brother regarding the
citizen's tip. The probation officer and Hitchen agreed
that, in light of the information from the concerned citizen,
a warrantless probation search of the residence should be
next day, Nelson, Hitchen, Investigator Nathan Rasch, two
other police officers, and two probation officers went to
Bursch's residence to conduct the probation search.
Outside the residence, they encountered Bursch who was
getting into his vehicle to leave. Bursch initially declined
to let them into the residence, but relented after Hitchen
indicated that, if necessary, they would knock down the door
to perform the search. Bursch acknowledged that he was aware
that his brother and Syverson were on probation and therefore
were subject to searches. Before entering the residence,
Rasch asked Bursch if there were any firearms inside. Bursch
responded that he had firearms in his bedroom.
entering the residence, Bursch led law enforcement to a
bedroom that was shared by his brother and Syverson. In the
hallway on the way to the brother's bedroom, Hitchen
passed by the open door to Bursch's bedroom, through
which he saw firearms. Bursch attempted to close the door to
his bedroom, explaining that he did not want them entering.
However, Hitchen advised him that he needed to perform a
protective sweep to make sure that no one was hiding in the
bedroom. Bursch relented after Hitchen explained to him that
they would not be "searching" the bedroom, but
merely making sure that there was no one hiding in it.
Hitchen entered the bedroom and observed several firearms.
discovering the firearms, the law enforcement officers, who
were aware that Bursch was a felon and was not allowed to
possess firearms, arrested Bursch. As a result of the search
of the residence, several firearms and stolen goods were
found. Law enforcement also found drug paraphernalia while
performing a warrantless search of a pickup truck and a Jeep
on the property. Later, during an interview with Rasch,
Bursch admitted to owning the firearms found in his bedroom.
an omnibus hearing, the district court found that the
evidence seized from the vehicles and appellant's
statements to law enforcement about the drug paraphernalia
were inadmissible. However, the district court denied
Bursch's motion to suppress ...