State v. Sorenson

• Decision Date: 11 October 1988
• Docket Number: No. C9-88-225,C9-88-225
• Citation: 430 N.W.2d 231
• Parties: STATE of Minnesota, Respondent, v. Cal S. SORENSON, Appellant.
• Court: Minnesota Court of Appeals

Page 231

430 N.W.2d 231

STATE of Minnesota, Respondent, v. Cal S. SORENSON, Appellant.

No. C9-88-225.

Court of Appeals of Minnesota.

Oct. 11, 1988.

Review Granted Dec. 1, 1988.

Syllabus by the Court

A state conservation officer, in performance of his duties, need not establish probable cause to believe a violation of the law either has occurred, or is occurring, prior to entering private lands.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Dennis M. Sobolik, Kittson Co. Atty., Brink, Sobolik, Severson, Vroom & Malm, P.A., Hallock, for respondent.

Bruce Nielsen, Lancaster, for appellant.

Considered and decided by SCHUMACHER, P.J., and RANDALL and MULALLY ^*, JJ., without oral argument.

OPINION

SCHUMACHER, Judge.

Appellant Cal S. Sorenson appeals from a conviction for transporting a loaded, uncased firearm in a motor vehicle, in violation of Minn.Stat. Sec. 97B.045(1) (1986). Appellant contends a conservation officer's search of his private property was unconstitutional, and that the fruits of this search should have been suppressed by the trial court. We affirm.

FACTS

On November 9, 1987, state conservation officer Brian Buria was patrolling Caribou Township in Kittson County when he observed a substantial amount of vehicle traffic coming from and going to appellant Cal S. Sorenson's hunting camp. Officer Buria decided to enter the camp and investigate whether any game or fish laws were being violated, and particularly whether all hunters had valid hunting licenses.

Appellant's camp was posted with no trespassing signs, and a gated fence blocked the road leading to the camp. Officer Buria opened the gate and upon proceeding into the camp found a deer hanging from a meat pole. After examining the deer and discovering that it was properly tagged, Officer Buria noticed a deer stand in an adjoining field which appeared to exceed height restrictions. While on his way to examine the deer stand, Officer Buria heard appellant approaching in a vehicle. Officer Buria motioned for appellant to stop and observed that appellant had a loaded, uncased gun in the stopped vehicle. Officer Buria issued appellant a citation for violating Minn.Stat. Sec. 97B.045(1) (1986). Appellant appeals from his conviction on this charge.

ISSUE

May a state conservation officer, in the performance of his duties, enter private land without first establishing probable cause to believe a violation of the law either has occurred, or is occurring?

ANALYSIS

Minnesota conservation officers are given broad statutory authority to "enter any land" to carry out the duties and functions of the fish and wildlife division of the Department of Natural Resources. Minn.Stat. Sec. 97A.205(2) (Supp.1987) (emphasis added). The trial court held that this statute authorized Officer Buria to enter appellant's private property without first establishing probable cause to believe a violation of the state's game laws had occurred. Appellant contends that this statute, as interpreted by the trial court, is an unconstitutional infringement of the protections guaranteed by the fourth and fourteenth amendments to the United States Constitution and article one, sections two and ten of the Minnesota Constitution.

The Minnesota Supreme Court has ruled that Minn.Stat. Sec. 97.50, subd. 2 (Supp.1985), the predecessor of Minn.Stat. Sec. 97A.205(2) (Supp.1987), authorizes warrantless entry upon private land by conservation officers. State v. Hoagland, 270 N.W.2d 778 (Minn.1978). However, in Hoagland, the court found that the officers had probable cause to believe a game law violation had occurred and did not address the issue of whether conservation officers, without probable cause, could make warrantless searches upon private lands.

In the present case, the only information available to Officer Buria, prior to his entry upon appellant's property, was that a hunting camp was located on appellant's property, increased amounts of traffic were entering and leaving appellant's property, and it was deer hunting season. This information, while supporting Buria's conclusion that hunting was occurring on appellant's land, did not give Buria probable cause to believe a game law violation had occurred. Consequently, we are faced with the issue of determining whether conservation officers need probable cause prior to making warrantless searches on private lands.

In order for appellant to establish that the conservation officer's presence on his property was an unreasonable search and constitutionally prohibited, appellant must first establish that he had a "constitutionally protected reasonable expectation of privacy" in the area searched. Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). The activities engaged in by the conservation officer while on appellant's property took place entirely in open fields. Consequently, appellant's fourth amendment rights were not violated, because the special protections accorded by the fourth amendment do not extend to open fields. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924).

Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable.

Oliver v. United States, 466 U.S. 170, 171, 104 S.Ct. 1735, 1737, 80 L.Ed.2d 214 (1984).

We reject appellant's contention that this case does not deal solely with a search of "open fields," but also involves a search of the "curtilage" surrounding appellant's cabin. Fourth amendment protection extends both to the home and to the curtilage immediately surrounding the home. The term curtilage has been defined to mean:

The area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life."

Oliver, 466 U.S. at 180, 104 S.Ct. at 1742 (citing Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746).

Appellant's arrest, which occurred a few hundred yards away from appellant's cabin, was not within the cabin's curtilage. See United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985) (marijuana patch 325 yards from home was outside curtilage). Appellant's contention that, while the arrest may have occurred outside the curtilage, the arrest was the unlawful fruit of the officer's search within the curtilage, is without merit. The officer's investigation within the area immediately surrounding the cabin was of a cursory nature. The officer did not investigate the area immediately surrounding the cabin. The only activity conducted near the cabin was the officer's inspection of a deer to see that it was properly tagged.

Appellant's claims based on violation of the state constitution were not brought to the attention of the trial court and cannot be raised for the first time on appeal. Nelson v. Nelson, 291 Minn. 496, 497, 189 N.W.2d 413, 415 (1971).

DECISION

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

RANDALL, J., dissents.

RANDALL, Judge, dissenting.

I respectfully dissent. The majority does correctly frame the issue where it states:

This information, while supporting Buria's conclusion that hunting was occurring on appellant's land, did not give Buria probable cause to believe a game law violation had occurred. Consequently, we are faced with the issue of determining whether conservation officers need probable cause prior to making warrantless searches on private lands.

The majority then finds that somehow conservation officers are an exception to the general laws governing search and seizure. I respectfully disagree and find that they are not.

The issues as I see them lie in four areas: (1) warrantless searches, (2) articulable suspicion to stop, (3) the force and meaning of Minn.Stat. Sec. 97A.205(2) (Supp.1987), (4) the applicability, if any, of the "open fields" exception.

I.

Warrantless searches

The State of Minnesota concedes, and the majority acknowledges, that Officer Buria did not, prior to entering appellant's land and stopping him, have knowledge leading to the level of probable cause to believe that a game law violation had occurred. It is time-honored law that searches conducted without a warrant issued upon probable cause are, per se, unreasonable and subject only to certain precise exceptions. State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985).

The state does not claim any of the possible exceptions open to them such as warrantless search but pursuant to consent, ¹ or a warrantless search but incident to a lawful arrest. ² Since the state concedes no probable cause for a warrantless search, this avenue to sustain the seizure of the uncased weapon, and thus the conviction, is closed to them.

II.

Articulable suspicion to stop

This issue comes closest to the actual fact situation. Even if the state had less than the necessary probable cause to arrest without a warrant (a valid warrantless arrest would lead to a valid search "incident to lawful arrest") and then lawfully search appellant, or less than enough probable cause to legally search appellant without a warrant and then use the fruits of that search to justify an arrest, the state can use the fruits of this stop and search if the weapon was in plain sight and seized after a lawful stop premised on articulable suspicion that appellant was suspected of criminal activity. In order to make such a stop, "the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). ³

Cortez, has been cited by Minnesota appellate courts several times with approval. Appelgate v. Commissioner of Public Safety, ...