State v. Iepson
| Decision Date | 06 April 2015 |
| Docket Number | A14-0963 |
| Court | Minnesota Court of Appeals |
| Parties | State of Minnesota, Respondent, v. Stephen Charles Iepson, Appellant. |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Reversed
Hennepin County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Joseph P. Tamburino, Hillary B. Parsons, Caplan & Tamburino Law Firm, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
Appellant challenges his conviction of fifth-degree controlled-substance crime, arguing that the police violated his Fourth Amendment constitutional rights by conducting a warrantless search of his business premises, and further arguing that the district court erred by denying his motion to suppress the evidence. We reverse.
The present case involves the warrantless search of a commercial building located at 3539 85th Avenue North in Brooklyn Park. The building is a large industrial space housing several individual units, including a unit leased by appellant-tenant Stephen Charles Iepson for his business, Free Vend Technical Services.
On November 27, 2012, there was a gas leak in the main gas line running into the building. CenterPoint Energy (CenterPoint) turned off the gas supply to the entire building in order to repair the gas leak. Following the repair, CenterPoint needed to relight the individual furnace pilot lights in each tenant's space. CenterPoint was able to relight some, but not all, of the furnaces in each unit from the outside of the building. CenterPoint was unable to reach appellant by phone to gain entry to his business unit and contacted the owner of the commercial building and a locksmith to drill open the door to appellant's unit. The building owner also tried to contact appellant to gain access to his business unit but did not receive an answer.
CenterPoint contacted the Brooklyn Park police department to request a standby police presence before drilling the locks at Free Vend Technical Services, appellant's business. CenterPoint routinely asks for a standby police presence in these types of situations. A Brooklyn Park police officer arrived approximately two hours later and met with the building owner, the CenterPoint technician, and the locksmith. The officer knocked on the door to appellant's unit several times but did not receive an answer. The building owner had a key to the front door of Free Vend Technical Service's business unit, and he unlocked it.
The front door to appellant's business unit opened into a small office area. The building owner, the police officer, and the technician entered into the office area. Beyond the initial entry area a second, locked door, led from the office area to the back portion of the business where the furnace was located. The building owner did not have a key to the second door and the locksmith drilled the lock and opened the second door to the back portion of appellant's business. The officer testified that as soon as the inner door opened, he smelled an "extremely strong smell of unburnt marijuana."
The officer entered through the second door into a larger warehouse-type space. The officer did not have a search warrant to enter through the second door. The officer described the interior space as a multi-level warehouse area. As the officer walked through the warehouse he saw "what appeared to be a marijuana grow" in the upper level portion of the warehouse and harvested marijuana plants in the lower level of the warehouse. The technician located the furnace, relit the pilot light, and left the building.
The officer left the building without conducting further investigation and contacted his sergeant. The police department obtained and executed a search warrant on appellant's business. Officers found 16-20 harvested marijuana plants in the lower part of the business and multiple marijuana plants encased in foil with hydroponic lights over them in the upper part of the business. Officers also found paperwork in appellant's name, a water pump and filtration system, a scale, and additional drug notes. The plants were seized and tests later confirmed that the plants tested positive for marijuana and weighed 1,091.09 grams. On March 26, 2013, the state charged appellant with one count of felony possession of a controlled substance in the fifth degree.
Appellant moved to suppress the seized evidence on the grounds that the police officer entered his place of business without a search warrant or exigent circumstances justifying entry. The state argued that the police officer's initial entry into appellant's business was proper because there were exigent circumstances and the landlord had the authority to consent to the search. Surprisingly, the state did not raise a private-action argument in its written memorandum and did not elicit testimony to support that argument during the suppression hearing.
The district court denied the motion to suppress, determining that the entry did not constitute a Fourth Amendment search because the police officer was acting to prevent an emergency situation and a warrant was not required. The district court also determined that if the Fourth Amendment applied, the "totality" of the exigent circumstances justified a warrantless entry. Following its decision, the district court conducted a stipulated facts trial. Appellant was found guilty of the charged offense and received a stay of imposition under Minn. Stat. § 609.135 (2012). This appeal followed.
Appellant challenges the district court's denial of his motion to suppress evidence obtained as a result of the search of his business. When reviewing a pretrial order on a motion to suppress, we review the district court's factual findings for clear error and the legal determinations de novo. State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012).
The state argues for the first time on appeal that the police officer's warrantless entry into appellant's business was lawful because it was "instigated by and done for thebenefit of private parties." See State v. Buswell, 460 N.W.2d 614, 617-18 (Minn. 1990) (). The state did not present this argument to the district court. Appellant asserts that the state waived the private-action argument by failing to raise it in district court. We agree.
Generally, issues not raised below will not be considered on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But we may address issues raised for the first time on appeal when the "interests of justice require their consideration and doing so would not work an unfair surprise on a party." State v. Henderson, 706 N.W.2d 758, 759 (Minn. 2005) (citing Minn. R. Crim. P. 28.02, subd. 11).
In State v. Grunig, the Minnesota Supreme Court considered whether the state waived the issues of actual or apparent authority to consent to a warrantless search where it did not argue these issues to the district court and the issues were raised for the first time on appeal. 660 N.W.2d 134, 135 (Minn. 2003). We held that the state waived these arguments. Id. But our supreme court reversed and remanded, concluding that:
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.
The present case is readily distinguishable from Grunig. In that case, the state built a factual record with respect to the issue of apparent authority at the suppressionhearing and elicited testimony from the fact witnesses bearing directly on that issue. Id. By contrast, in this case the state failed to develop a factual record supporting its private-action argument. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) ().
Moreover, applying the exception to the waiver-rule would "work an unfair surprise" on appellant, who was not given notice of the issue or an opportunity to present evidence. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (). Because we conclude that appellant was not given an opportunity to present evidence on the private-action argument at the suppression hearing and there is not a sufficient factual record for this court to meaningfully address the state's newly raised private-action argument, we deem it waived.
We next address whether the police officer's entry into appellant's business constituted a search. State v. Davis, 732 N.W.2d 173, 176 (Minn. 2007). The Fourth Amendment to the United States Constitution and article 1 of the Minnesota Constitution protect an individual from "unreasonable searches and seizures" by the government. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. A "search" occurs "upon an official'sinvasion of a person's reasonable expectation of privacy." State v. Johnson, 831 N.W.2d 917, 922 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013).
The Fourth Amendment generally requires a warrant before the government may search the home or business of a private individual. State v. Richards, 552 N.W.2d 197, 203 (Minn...
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