State v. Larsen

• Citation: 637 N.W.2d 315
• Decision Date: 26 December 2001
• Docket Number: No. C5-01-980.,C5-01-980.
• Parties: STATE of Minnesota, Appellant, v. Marvin Russell LARSEN, Respondent.
• Court: Court of Appeals of Minnesota

637 N.W.2d 315

STATE of Minnesota, Appellant, v. Marvin Russell LARSEN, Respondent.

No. C5-01-980.

Court of Appeals of Minnesota.

December 26, 2001.

Mike Hatch, Attorney General, St. Paul, and G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Faribault, for appellant.

Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Circle K, Shakopee, for respondent.

Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and HARTEN, Judge.

OPINION

R.A. RANDALL, Judge.

The state challenges a pretrial order that dismissed charges of petty misdemeanor possession of marijuana and fishing with an extra line. The evidence to support those charges was obtained by a Minnesota conservation officer who entered and searched respondent's ice-fishing house with no articulable suspicion, no probable cause, no search warrant, no issue of hot pursuit, and the search and seizure did not come under any other exception. We conclude that an individual using an ice-fishing house for personal recreational purposes has a reasonable expectation of privacy. We find no law granting extrajudicial powers to conservation officers that makes them exempt from constitutional guarantees of fairness and due process. We affirm.

FACTS

An officer of the Minnesota Department of Natural Resources (DNR) entered the ice-fishing house occupied by respondent Marvin Larsen to see if respondent was properly licensed. As in the other ice-fishing house cases that our courts have examined, the method of entry used here was the common method employed by conservation officers when entering ice-fishing houses or dark houses.¹ That method is for the officer to put one hand on the door handle, knock on the door, and say, "Department of Natural Resources Conservation Officer," or words to that effect, and simultaneously pull open the door and enter the fish house. The layman's term "barging in" is accurate. The entry is simultaneous with the announcement of identification, and consent is not asked for, specifically because the state and the conservation officer take the position that consent is irrelevant.

After the officer observed what appeared to be an unlit marijuana cigarette, he conducted a pat-down search of respondent and located a small amount of marijuana. The officer also noticed that respondent had three lines in the water when only two are permitted.

Respondent was charged with possession of a small amount of marijuana and with using too many fishing lines. He moved to have the charges dismissed on the ground that the officer's entry violated respondent's Fourth Amendment rights because he had a reasonable expectation of privacy in his fish house. The district court granted respondent's motion to suppress the evidence and dismissed the charge. The state now appeals.

ISSUE

Did the warrantless search of respondent's fish house violate his reasonable expectation of privacy?

ANALYSIS

Respondent's fish house was searched without a warrant pursuant to Minn.Stat. § 97A.215, subd. 3(1)(2000), which provides that a conservation officer may inspect the premises of an activity requiring a license under the game and fish laws, and to Minn.Stat. § 97C.355, subd. 2 (2000), which requires that ice-fishing houses be licensed. The district court held that this search violated respondent's reasonable expectation of privacy and suppressed the evidence obtained during the search. Both parties agree that the suppression of the evidence had a critical impact on the state's ability to proceed with the case against respondent; thus, the issue is ripe for appeal. See State v. Scott, 584 N.W.2d 412, 416 (Minn.1998)

(stating that when state appeals from pretrial suppression order, it must show that suppressed evidence had critical impact on state's ability to prosecute successfully).

This court recently reviewed the identical issue, i.e., whether evidence obtained in a warrantless search of an ice-fishing house (where the state claimed no exception to the warrant requirement applied) must be suppressed, and concluded that it must. State v. Krenz, 634 N.W.2d 231 (Minn.App.2001). In Krenz, a DNR officer entered a fish house without a warrant, observed a small pipe that appeared to be a device for smoking controlled substances, and retrieved several containers of cocaine from a hole in the ice where they had been thrown. Krenz admitted that he smoked cocaine with the pipe, that the pipe belonged to him, and that it contained cocaine; he was charged with one count of controlled substance-crime in the fifth degree. Krenz moved to suppress the evidence and his own statements on the grounds that the search and seizure were unlawful. Krenz's motion was granted and the state appealed.

This court accepted the district court's reasoning that

because the solid walls of a fish house provide visual privacy for a range of legitimate activities that can take place in a fish house, an expectation of privacy in a fish house is reasonable.

Id. at 234. We then affirmed the district court's conclusion

that because Krenz had a legitimate expectation of privacy in his fish house, [the DNR officer's] entry into the fish house without consent, a warrant, probable cause, or an articulable basis for suspicion violated the Fourth Amendment of the United States Constitution.

Id.

Krenz goes on to quote Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998), for a definition of a reasonable expectation of privacy:

[an expectation] that has a source outside of the fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Krenz, 634 N.W.2d at 234 (quotations omitted).

Although the state concedes that Krenz is very close to the case before us, the state attempts to raise new arguments, and old arguments from Krenz clothed in a different hue. The case is of statewide importance. Annually, the state of Minnesota sells more than one million licenses and permits for recreational activities, including, but not limited to, fishing licenses, fish-house permits, hunting licenses, permits to gather wild rice, and other related activities. Thus, we will review each of the state's arguments.

I. Right of privacy

The state argues that occupants of fish houses, unlike other building structures, have no expectation of privacy and, thus, the normal constitutional constraints on law enforcement investigation, detention, and search and seizure do not come under the Fourth Amendment to the U.S. Constitution and to the Minnesota Constitution, Article I, Section 10.

We disagree firmly with the state. The courts' and legislature's definition of the term "dwelling" covers fish houses. See, e.g., Minn.Stat. § 609.581, subd. 3 (2000) (defining "dwelling" in the context of burglary). "Dwelling" means a building used as a permanent or temporary residence. Id.

For decades, case law has included within this definition much more than single-family homes. See, e.g., State v. Walker, 319 N.W.2d 414, 417 (Minn.1982)

(determining that structure attached to dairy barn that provided shelter for calves and would shelter people from the elements was a building); State v. Vredenberg, 264 N.W.2d 406, 407 (Minn.1978) (holding that houseboat cabins were suitable for human shelter and therefore were buildings); State v. Bronson, 259 N.W.2d 465, 465-66 (Minn.1977) (concluding that basketball arena being converted to ice arena was a building, even though one wall had been removed when burglary was committed); State v. Gerou, 283 Minn. 298, 302, 168 N.W.2d 15, 17 (Minn.1969) (concluding steel warehouse used as shelter by those who worked in it was a building); State v. Edwards, 589 N.W.2d 807, 811 (Minn.App. 1999) (finding apartment of recently deceased tenant who had been murdered in apartment was "dwelling"), review denied (Minn. May 18, 1999); State v. Hofmann, 549 N.W.2d 372, 375 (Minn.App.1996) (holding motor home was building within meaning of burglary statute because it was suitable for affording shelter to human beings), review denied (Minn. Aug. 6, 1996); State v. Hendrickson, 528 N.W.2d 263, 265-66 (Minn.App.1995) (concluding definition of "dwelling" in burglary statute includes appurtenant structures), review denied (Minn. Apr. 27, 1995); In re Welfare of R.O.H., 444 N.W.2d 294, 294-95 (Minn.App.1989) (concluding mini-storage unit without heat, electricity, or plumbing could nevertheless afford shelter for human beings and thus was a building within meaning of burglary statute). The courts recognize and accept that, for purposes of burglary, both "building" and "dwelling" are broadly defined. The law confers an expectation of privacy on a wide range of structures.

Here, a word needs to be said about just what is a "fish house," meaning an ice-fishing house or a fish house. Just like the word "home," no single word describes the simplicity or the complexity, the amount of space or the lack of space, or the presence of amenities or the lack of amenities that may exist in a fish house. While some fish houses are basically canvas and/or thin wood enclosed shed-type structures, it is not uncommon for fish houses to have a rudimentary and, at times, even a sophisticated-type interior heating system. While ice fishing can take place during the day, it can also commonly take place during hours extending well after midnight and into the next day. It is not uncommon for a fish house, even a simple one, to contain a cot for resting and sleeping. Fish houses often contain chairs, portable radios, and portable televisions. Many fish houses are built larger and for more than the basic one or two holes in the ice. Some have the equivalent of beds, televisions, refrigerators, and some elementary method of heating food. The occupant of a fish house has an expectation of privacy exceeding that of someone sitting in a car or an open fishing boat.

The...