                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-2107

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  William Joseph Rurup,
                                        Appellant.

                                 Filed December 7, 2015
                                        Affirmed
                                     Chutich, Judge

                              McLeod County District Court
                                File No. 43-CR-14-530

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

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant McLeod
County Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant William Rurup appeals his conviction of second-degree possession of a

controlled substance and challenges the district court’s denial of his pre-trial motion to
suppress evidence. Rurup argues that the state failed to carry its burden to show that the

garbage container seized and searched by police was not within the curtilage of his home

and, without mention of this illegally seized evidence, the resulting search warrant

affidavit did not provide probable cause to believe that contraband would be found in his

home. Because we conclude that Rurup failed to meet the threshold burden of

demonstrating a reasonable expectation of privacy in garbage set out for collection, we

affirm his conviction.

                                         FACTS

       In April 2014, officers with the Hutchinson Police Department sought a warrant to

search Rurup’s home. Officer McLain, the officer who sought the warrant, reported in

his affidavit that he received information about possible drug activity involving a person

known as “Cowboy,” whom he knew to be Rurup. Rurup lives in a trailer court that is

privately owned but has paved roads that are accessible to the public and are patrolled by

the police.

       Before seeking the warrant, Officer McLain rode with a confidential source to

Rurup’s home and “observed that the trash receptacle was placed on the curb for pick

up.” The officer took the trash back to the Hutchinson Police Department, examined it,

and found the following: (1) one piece of mail addressed to William Rurup, (2) two drug

notes, (3) an empty butane canister, (4) a broken glass pipe with white residue, and (5) a

small plastic ziplock baggie with white residue. The officer tested the residue in the glass

pipe and the plastic baggie and found that they contained methamphetamine. On that

evidence, Officer McLain applied for and obtained a search warrant.


                                             2
       Officer McLain executed the search warrant. Officer McLain read Rurup his

Miranda rights and asked him if he would give a statement. Rurup agreed and admitted

that there was methamphetamine locked in a safe upstairs. Officer McLain opened the

safe and found, among other things, plastic baggies containing a substance that was later

tested and determined to be methamphetamine and a large bag of marijuana. Based on

this evidence, the state charged Rurup with second-degree possession of a controlled

substance, methamphetamine. See Minn. Stat. § 152.022, subd. 2(a)(1)(2014).

       At a contested omnibus hearing, Rurup moved to suppress the narcotics evidence

asserting that the warrantless seizure and later search of his garbage was unconstitutional.

Rurup contended that the officers needed to leave the paved street and walk onto his

private property to obtain the garbage bags.

       The district court denied Rurup’s motion to suppress, finding that the garbage can

was located “at the edge of [Rurup’s] property near the curb of a street that is accessible

to the public.” It concluded that because “the garbage receptacle was awaiting pickup

while placed on the curb of a publicly accessible road, the defendant no longer had a

legitimate expectation of privacy in its contents,” and the search did not violate his

constitutional rights.

       Following the omnibus hearing, the parties agreed to hold a stipulated-facts trial.

See Minn. R. Crim. P. 26.01, subd. 3. The district court convicted Rurup of second-

degree possession of a controlled substance and imposed a sentence of 60 months. Rurup

appeals.




                                               3
                                     DECISION

       “When reviewing pretrial orders on motions to suppress evidence, we

independently review the facts and determine, as a matter of law, whether the district

court erred in its ruling.” State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006) (citing

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)). “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. (citing State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998)).

       Rurup contends that the search warrant lacked probable cause because it was

issued on the basis of information gathered in an illegal garbage search, which the issuing

judge should not have considered. Accordingly, Rurup asserts that the warrant was

invalid and that all evidence gathered following the warrant’s execution must be

suppressed and his conviction must be reversed. We disagree.

       “A search warrant is supported by probable cause if there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” State v. Fort, 768

N.W.2d 335, 342 (Minn. 2009) (quotation omitted). “Contraband seized from a garbage

search can provide an independent and substantial basis for a probable-cause

determination.” State v. McGrath, 706 N.W.2d 532, 543 (Minn. App. 2005), review

denied (Minn. Feb. 22, 2006). But “an 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).

       The United States and Minnesota Constitutions protect the “right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and


                                            4
seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10.         “This constitutional

protection extends to all places where an individual has a reasonable expectation of

privacy, including the home and its curtilage.” Haase v. Comm'r of Pub. Safety, 679

N.W.2d 743, 746 (Minn. App. 2004). An unlawful search or seizure under the Fourth

Amendment occurs when an individual's reasonable expectation of privacy is invaded.

See Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967). “Generally,

evidence seized in violation of the constitution must be suppressed.” State v. Jackson,

742 N.W.2d 163, 177–78 (Minn. 2007).

      In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988), the United

States Supreme Court concluded that a warrantless search of garbage left at the curb does

not violate the Fourth Amendment to the Constitution of the United States. Id. at 39–41,

108 S. Ct 1625, 1628–29.      The Minnesota Supreme Court has explicitly addressed

California v. Greenwood and held that article I, section 10, of the Minnesota Constitution

does not provide any greater protections than the United States Constitution in this

context. State v. McMurray, 860 N.W.2d 686, 690 (Minn. 2015).

      While Minnesota courts recognize that “a householder may ordinarily have some

expectation of privacy in the items he places in his garbage can,” Oquist, 327 N.W.2d at

591, this expectation is eroded when garbage is placed at curbside for normal collection.

State v. Goebel, 654 N.W.2d 700, 704 (Minn. App. 2002). Consistent with the United

States Supreme Court’s holding in California v. Greenwood, Minnesota courts have held

that garbage set out for collection is not protected by the Fourth Amendment and may be

searched without a warrant. See, e.g., McMurray, 860 N.W.2d at 694–95 (finding no


                                            5
reasonable expectation of privacy in garbage set out on the curb for collection); State v.

Krech, 403 N.W.2d 634 (Minn. 1987) (finding no constitutional 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 (Minn. 1984) (holding that police did not violate defendant's Fourth

Amendment rights in seizing and searching three plastic bags full of garbage which

defendant had put out for collection at the curb at the edge of his driveway); Goebel, 654

N.W.2d 700 (finding that garbage placed on the street for pickup was not protected by

constitutional warrant requirements).

       Rurup argues that he can still prevail under this caselaw for two reasons: (1) the

state failed to carry its burden to establish that the search did not take place within the

curtilage of his residence, and (2) this line of cases fails to take into account the property-

rights theory of the Fourth Amendment revived by two recent United States Supreme

Court cases. See Florida v. Jardines, 133 S. Ct. 1409 (2013); United States v. Jones, 132

S. Ct. 945 (2012). We do not find these arguments persuasive.

       The crux of Rurup’s appeal is that “the state did not carry its burden to show that

the garbage was located outside the curtilage” so “the warrantless seizure and subsequent

search were not authorized.” Rurup asserts that “there is nothing in the record to explain

the layout of [his] home, yard, and driveway or how the driveway and curb relate

geographically to the home.” Rurup maintains that because the state had the burden of

proof, this deficiency in the record means that the state has not carried its burden and the

evidence must be suppressed. For this proposition, Rurup relies solely on an unpublished

decision of this court. See State v. Boman, No. A09-0061, 2009 WL 1921246 (Minn.


                                              6
App. July 7, 2009). Boman is not precedential authority, however, see Minn. Stat.

§ 480A.08, subd. 3 (2014), and is factually distinguishable. Moreover, to the extent its

analysis diverges from published Minnesota and United States Supreme Court caselaw,

we must follow the published authorities. See State v. M.L.A., 785 N.W.2d 763, 767

(Minn. App. 2010), review denied (Minn. Sept. 21, 2010) (stating that this court “is

bound by supreme court precedent and the published opinions of the court of appeals”).

       The United States Supreme Court has held that “the application of the Fourth

Amendment depends on whether the person invoking its protection can claim a

‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded

by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580

(1979).   Contrary to Rurup’s assertion that the state has the burden of proof, the

“proponent of a motion to suppress has the burden of establishing that his own Fourth

Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois,

439 U.S. 128, 130, 99 S. Ct. 421, 424 n.1 (1978); see also State v. Davis, 732 N.W.2d

173, 178 (Minn. 2007) (explaining that the defendant had the burden of showing that a

dog sniff occurring in a common hallway violated his Fourth Amendment rights); State v.

Licari, 659 N.W.2d 243, 249 (Minn. 2003) (explaining that a defendant must first

establish a legitimate expectation of privacy in a storage unit before contesting its

search). Once a reasonable expectation of privacy is established, then the state has the

“burden of proving that at least one of the exceptions to the warrant requirement applies.”

State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).




                                             7
        We conclude, therefore, that Rurup misconstrues the burden of proof by

neglecting to address the threshold question of whether his garbage fell under the

protections of the Fourth Amendment. On that question, Rurup has the burden to prove

that he had a reasonable expectation of privacy in his garbage. See Licari, 659 N.W.2d at

249.

        A person has a constitutionally protected reasonable expectation of privacy in the

curtilage of his or her residence. Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001).

The Minnesota Supreme Court has defined curtilage as the area around a residence that

“harbors the intimate activity associated with the sanctity of a [person’s] home and the

privacies of life.” Krech, 403 N.W.2d at 636 (quotations omitted). The purpose of the

curtilage determination is to aid courts in deciding “whether the area in question is so

intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of

Fourth Amendment protection.” Id. at 637 (quoting United States v. Dunn, 480 U.S. 294,

301, 107 S. Ct. 1134, 1140 (1987)).

        Courts consider four factors in determining curtilage: “the proximity of the area

claimed to be curtilage to the home, whether the area is included within an enclosure

surrounding the home, the nature of the uses to which the area is put, and the steps taken

by the resident to protect the area from observation by people passing by.” Id. at 636–37.

Considering these factors in light of Rurup’s burden of proof, we conclude that he has not

carried his burden to demonstrate that the search took place within the curtilage of his

home.




                                            8
       Although the district court did not explicitly analyze the Krech factors, the district

court’s findings are consistent with their application to the limited record. The first

Krech factor directs the court to look at the proximity of the garbage cans to Rurup’s

home. The only information in the record regarding the placement of the garbage is from

Officer McLain’s affidavit and testimony. In his affidavit, Officer McLain states that

“the trash receptacle was placed at the curb for pick up.” At the contested omnibus

hearing, Officer McLain admitted on cross-examination that he was not “100 percent

sure” whether there was an actual curb, but he testified consistent with his affidavit that

the garbage can had been set out for collection. We find that this factor weighs in favor

of determining that the area was not curtilage.

       No evidence addresses the three remaining Krech factors, which is why Rurup’s

argument turns on who has the burden of proof. Because Rurup has the burden of proof

on the threshold question of whether he had a constitutionally protected interest in the

area searched by the police, the paucity of the record weighs against him and in favor of a

determination that the search did not occur within the residence’s curtilage.

       The district court found that the garbage can was located “at the edge of [Rurup’s]

property near the curb of a street that is accessible to the public.” The district court found

that “the paved street in front of the residence is not owned by the City of Hutchinson but

is open to and commonly used by the public.” From those findings of fact, the district

court concluded that because “the garbage receptacle was awaiting pickup while placed

on the curb of a publicly accessible road, the defendant no longer had a legitimate




                                              9
expectation of privacy in its contents” and the search did not violate his constitutional

rights.

          The district court’s factual finding is not clearly erroneous.     Given Officer

McLain’s uncontroverted testimony that the garbage can was set out for collection, a

reasonable inference arises that the can was outside the curtilage of the residence. We

conclude that the district court did not err in determining that the garbage was not within

the curtilage of the residence and therefore not within “the home's ‘umbrella’ of Fourth

Amendment protection.” Id. at 637.

          Rurup maintains that he need not demonstrate a reasonable expectation of privacy

in his garbage because another test is available under Fourth Amendment jurisprudence:

the property-rights theory. In United States v. Jones, the Supreme Court discussed the

property-rights theory that preceded the reasonable-expectation-of-privacy formulation in

Katz. 132 S. Ct. at 950. The guiding principle of the property-rights theory is “that,

when the Government . . . engage[s] in physical intrusion of a constitutionally protected

area in order to obtain information, that intrusion may constitute a violation of the Fourth

Amendment.” Id. at 951 (quotation omitted); see also Jardines, 133 S. Ct. at 1414 (using

property-rights analysis to determine that police officers violated the Fourth Amendment

by physically entering and occupying the defendant’s porch to gather information with a

drug-sniffing dog).

          Rurup argues that “[t]he property-rights analysis provides an independent basis to

conclude that a search and seizure occurred” because the police “physically occupied

[Rurup’s] property for the purpose of obtaining information” in violation of Jones and


                                              10
Jardines. Rurup argues that “[t]he question on appeal is not about [his] ‘expectation of

privacy’ in the contents of the garbage bags, instead the question is one of possible

trespass to retrieve the garbage bags.”

       Rurup’s reliance on these cases is unavailing. Minnesota courts have clearly held

that police may not trespass to search a person’s garbage. Oquist, 327 N.W.2d at 591. If

the only issue is possible trespass, then Rurup need not look to the property-rights theory;

the reasonable-expectation-of-privacy approach followed by all of the Minnesota

garbage-search cases can accommodate a challenge based on trespass. Accordingly, we

conclude that the district court did not err in employing a reasonable-expectation-of-

privacy analysis.

       Finally, Rurup’s argument that a possible trespass occurred lacks merit. This

claim turns on the state having the burden of proof to establish that the garbage can was

not in the curtilage of the residence. Because we have concluded that this assertion is

incorrect, Rurup’s argument fails. The district court found that the garbage can was on

the curb, and that finding is not clearly erroneous. Officer McLain testified consistently

that the trash was out for collection, from which the district court could reasonably infer

that the trash was not placed such that a trash collector would have to trespass to gather it.

Further, no evidence in the record suggests that Officer McLain trespassed to seize

Rurup’s trash. The district court’s findings of fact are not clearly erroneous and should

not be disturbed.

       In sum, the warrantless seizure and later search of Rurup’s garbage did not violate

his Fourth Amendment rights and the information gathered in the search was properly


                                             11
included in Officer McLain’s affidavit. We conclude that the district court did not err in

denying Rurup’s suppression motion because the search warrant used to obtain the

narcotics evidence was supported by probable cause. Accordingly, we affirm Rurup’s

conviction.

      Affirmed.




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