State v. McMurray

• Decision Date: 16 September 2013
• Docket Number: A12-2266
• Court: Minnesota Court of Appeals
• Parties: State of Minnesota, Respondent, v. David Ford McMurray, Appellant.

State of Minnesota, Respondent, v. David Ford McMurray, Appellant.

A12-2266

STATE OF MINNESOTA IN COURT OF APPEALS

Filed September 16, 2013

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Stauber, Judge

McLeod County District Court

File No. 43CR12200

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Michael K. Junge, McLeod County Attorney, Glencoe, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Hooten, Judge; and Halbrooks, Judge.

UNPUBLISHED OPINION

STAUBER, Judge

On appeal from his conviction of third-degree possession of a controlled substance, appellant argues that (1) the search warrant authorizing a search of his home was unsupported by probable cause because the only evidence supporting it wasrecovered during an unconstitutional warrantless search of his garbage; (2) he was denied the effective assistance of counsel; and (3) his stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3, was outside the scope of the rules of criminal procedure and failed to satisfy his constitutional right to an adversarial trial. We affirm.

FACTS

In January 2012, local law enforcement received a tip regarding the use of controlled substances at appellant David McMurray's house. In response to the tip, Officer Andrew Erlandson conducted a search of the garbage sitting on the curb in front of appellant's house. During the search, Officer Erlandson discovered plastic baggies with white residue that tested positive for methamphetamine, drug pipes, and documents for appellant and his wife.

Officer Erlandson then sought and obtained a search warrant for appellant's residence. Upon execution of the warrant, law enforcement found appellant, his step-son, and a third individual upstairs in the master bedroom. Also discovered in the bedroom were 3.3 grams of methamphetamine and other drug paraphernalia.

Appellant was charged with second-degree possession of a controlled substance. The charge was later amended to third-degree possession of a controlled substance. Appellant subsequently moved to suppress the evidence on the basis that the warrant authorizing the search was supported only by the fruits of an unconstitutional search of his trash. Following a contested omnibus hearing, the district court denied appellant's motion.

Appellant agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3. The district court found appellant guilty of third-degree possession of a controlled substance and sentenced appellant to 24 months, a downward-durational departure. This appeal followed.

DECISION

I.

Appellant argues that the search of his trash was illegal, thus claiming that the search warrant issued based on evidence obtained from his trash was invalid and the fruits of the executed search warrant should have been suppressed.

On appeal from a pretrial order on a motion to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in its ruling. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). "The district court's factual findings are reviewed under the clearly erroneous standard, but we review the district court's legal determinations de novo." Id.

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally, an unlawful search or seizure under the Fourth Amendment to the United States Constitution occurs when an individual's reasonable expectation of privacy is invaded. Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967). And generally, evidence unconstitutionally seized must be suppressed. State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007).

"Contraband seized from a garbage search can provide an independent and substantial basis for a probable-cause determination." State v. McGrath, 706 N.W.2d532, 543 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). "[A]n examination of garbage by the police is a search and is therefore subject to the constraints imposed by the Fourth Amendment." State v. Oquist, 327 N.W.2d 587, 590 (Minn. 1982). Thus, the Minnesota Supreme Court has recognized that "a householder may ordinarily have some expectation of privacy in the items he places in his garbage can." Id. at 591.

However, "[i]t is, as the United States Supreme Court points out, 'common knowledge' that plastic garbage bags left on or beside a public street are vulnerable to any number of invasions, whether from animals or members of the public." State v. Goebel, 654 N.W.2d 700, 703-04 (Minn. App. 2002) (quoting California v. Greenwood, 486 U.S. 35, 40,108 S. Ct. 1625, 1628-29 (1988)). As a result, the expectation of privacy in garbage placed at curbside for normal pickup is eroded. Id. at 704. Following United States Supreme Court precedent, Minnesota courts have consistently held that garbage left on a curb or adjacent to an alley that is seized in a routine curbside pickup does not constitute an illegal search. See, e.g., State v. Krech, 403 N.W.2d 634, 636-37 (Minn. 1987) (holding no Fourth Amendment violation where garbage was left a few feet from an alley and seized and searched by police); State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984) (holding police did not violate defendant's Fourth Amendment rights by seizing and searching garbage left at curb); Oquist, 327 N.W.2d at 591 (holding no Fourth Amendment violation where deputies picked up plastic garbage bags near public alley while not leaving paved portion of alley to reach the bags); Goebel, 654 N.W.2d at 703-04 (holding no Fourth Amendment violation where garbage bags left for collection on curb at end of driveway).

Appellant concedes that he has "no valid Fourth Amendment claim regarding the search of his garbage." But appellant contends that "no Minnesota appellate court has thoroughly considered whether an individual has, under the Minnesota Constitution, a reasonable expectation of privacy in the contents of his or her garbage bags." Appellant argues that because the Minnesota Constitution provides "broader protections" than the federal constitution, this court should hold that appellant has a reasonable expectation of privacy in the contents of his garbage.

We acknowledge that appellant presents a compelling argument in support of his position. And his position is supported by caselaw from several states that have recognized, under their respective state constitutions, that individuals have a reasonable expectation of privacy in the contents of garbage bags left for pickup. See, e.g., State v. Goss, 834 A.2d 316, 319 (N.H. 2003) (holding that under the New Hampshire Constitution, a defendant had a reasonable expectation of privacy in trash that he placed in black plastic bags on driveway); State v. Morris, 680 A.2d 90, 100 (Vt. 1996) (concluding that under the Vermont Constitution, persons have objectively reasonable privacy interest in contents of opaque trash bags left at curbside for garbage collection); State v. Hempele, 576 A.2d 793, 810 (N.J. 1990) (holding that an individual has a reasonable expectation of privacy that is protected by the New Jersey Constitution in garbage left at curbside); State v. Boland, 800 P.2d 1112, 1116-17 (Wash. 1990) (holding that defendant's private affairs were unreasonably intruded upon by law-enforcement officers under the Washington Constitution when they removed and searched garbage from his trash can that was sitting on the curbside).

But, as appellant recognizes, this court has concluded that the Minnesota Constitution does not provide people with a reasonable expectation of privacy in the contents of their garbage bags. For example, in Goebel, this court held that garbage left on the street at the end of a private driveway for routine collection is not within the curtilage of the home and is not protected by the warrant requirement of Article I, section 10 of the Minnesota Constitution. 654 N.W.2d at 701. And more recently, in McGrath, this court declined to hold that "garbage searches are per se unreasonable under Minnesota law." 706 N.W.2d at 545.

Here, it is undisputed that appellant placed his garbage at the curb for pickup. Under well-established caselaw from this court, appellant had no expectation of privacy with respect to this garbage under the Minnesota Constitution. See McGrath, 706 N.W.2d at 545; see also Goebel, 654 N.W.2d at 701. Accordingly, the district court did not err by denying appellant's motion to suppress.

II.

Appellant next contends that he was denied the effective assistance of counsel. This court reviews a claim of ineffective assistance of counsel de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

To establish ineffective assistance of counsel, a defendant "must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that the outcome would have been different but for counsel's errors." State v. Caldwell, 803 N.W.2d 373, 386 (Minn. 2011). An attorney acts within an objective standard of reasonableness by exercising the customary skills anddiligence of a reasonably competent attorney under similar circumstances. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009). There is a strong presumption that counsel's representation was reasonable. State v. Pearson, 775 N.W.2d 155, 165 (Minn. 2009).

Typically, ineffective-assistance-of-counsel claims are analyzed as trial errors under the standard developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). State v. Dalbec, 800 N.W.2d 624, 627 (Minn. 2011). Under certain circumstances, however, a counsel's ineffective assistance may amount to structural error, which does not require any showing of prejudice. Id. A "structural...