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State v. Bursch

Court of Appeals of Minnesota

December 18, 2017

State of Minnesota, Respondent,
Joshua Micheal Bursch, Appellant.

         Polk County District Court File No. 60-CR-13-1873

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, Minnesota (for respondent)

          John D. Ellenbecker, St. Cloud, Minnesota (for appellant)

          Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.


         An 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 probation.


          HOOTEN, JUDGE

         In an 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.


         Appellant 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.

         Investigator 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 conducted.

         The 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.

         Upon 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.

         Upon 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.

         After 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 ...

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