                          This opinion will be unpublished and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
                                     A16-0330

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Tara Renaye Molnau,
                                       Appellant.

                                Filed December 19, 2016
                                        Affirmed
                                      Jesson, Judge

                             McLeod County District Court
                               File No. 43-CR-15-597

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Ted C. Koshiol, Special Assistant Public Defender, Minneapolis, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Jesson,

Judge.
                         UNPUBLISHED OPINION

JESSON, Judge

       Appellant challenges her conviction of third-degree possession of a controlled

substance in violation of Minn. Stat. § 152.023, subd. 2(a)(1) (2014). She argues that the

district court erred by declining to suppress evidence of methamphetamine found in her

purse by police during the search of a home of another person. We affirm.

                                          FACTS

       Jeff Morris, a licensed peace officer employed by the Renville County Sheriff’s

Office and assigned to the Brown-Lyon-Redwood-Renville (“BLR”) Drug Task Force,

applied for a daytime warrant on April 17, 2015, to search the Hutchinson home of

Nicholas John Zobel. Among other things, the application signed by Morris stated that in

the month of April, police had received a tip that Zobel was involved in “illicit drug sales”

and “drug trafficking in the McL[eo]d County area.” The warrant application further stated

that during Morris’s participation in a warranted search at the home of A.M.S. on April 14,

2015, an occupant of that home, J.P.K., told police that early that morning J.P.K. had driven

A.M.S. to Zobel’s home, and A.M.S. “purchased approximately one half ounce of

methamphetamine from” Zobel. According to Morris, J.P.K. also informed police that

A.M.S. had purchased methamphetamine in the past at Zobel’s home and that Zobel was

A.M.S.’s supplier. J.P.K. positively identified both Zobel and Zobel’s address. The

search-warrant application also stated that Zobel had second-degree and fifth-degree

controlled-substance convictions in 2006.




                                             2
      On this information, the district court issued a daytime warrant that allowed police

to search Zobel’s home and person for methamphetamine or other controlled substances,

and to search for other items associated with selling drugs, such as weapons.

      Morris and eight or nine officers from the Hutchinson Police Department executed

the warrant at Zobel’s home at 3:08 p.m. on April 22, 2015. When they knocked on the

back door and announced their presence, police heard a commotion inside the home, Zobel

“came running out the front door” and then immediately ran back inside and was

apprehended by police, who followed him. Once inside the home, police found appellant

Tara Renaye Molnau sitting on a living room couch.

      During the search of the home, police came upon a purse sitting on the kitchen table.

Morris searched the purse and found that it contained Molnau’s identification and what

was later identified as 4.002 grams of methamphetamine, as well as some empty baggies.

Before the search, Morris did not know to whom the purse belonged. When asked his

reason for believing after he searched the purse that the methamphetamine in it belonged

to Molnau, Morris responded, “It was a purse, she’s a female, there was an ID card with

her name on it, a Blue Cross Blue Shield insurance card with her name, and then a

prescription pill bottle with her name on it as well.” When asked why he did not ask for

Molnau’s permission to search the purse, Morris stated, “I had a search warrant for

narcotics.” Police also found eight grams of methamphetamine at another location in the

home, as well as other drug paraphernalia. Molnau and Zobel were both arrested.

      Molnau was charged with third-degree possession of a controlled substance in

violation of Minn. Stat. § 152.023, subd. 2(a)(1). Molnau moved to suppress the criminal


                                            3
complaint “on the ground[] that there [was] insufficient showing of probable cause for law

enforcement to search” her purse. Following a suppression hearing at which Morris

testified, the district court denied the motion, determining that the search of the purse was

lawful because Molnau “was present in the residence on a couch in the living room at the

time the search warrant was executed,” the “purse [was] located in the kitchen area of the

house,” and the purse was not in Molnau’s possession when it was discovered by law

enforcement. In the attached memorandum of law, the district court reasoned:

                     [Molnau’s] purse was not on her person at the time the
              search warrant was being executed. The officers executing the
              search warrant could reasonably assume that the items listed in
              the search warrant could be concealed in a purse. Even had the
              officers known that the purse belonged to [Molnau], it is
              reasonable that drugs could have been concealed in the purse
              between the time that the purse was last in [Molnau’s]
              possession and the time that the search warrant was executed.

       Molnau entered a plea of not guilty under Minn. R. Crim. P. 26.01, subd. 4, in order

to preserve the pretrial suppression issue for appellate review. Molnau stipulated to the

state’s evidence in accordance with the rule, and the district court found Molnau guilty of

the charged offense. The district court stayed imposition of sentence and placed Molnau

on probation, which, among other conditions, required her to serve 45 days in jail. Molnau

appealed.




                                             4
                                      DECISION

       “When reviewing pretrial orders on motions to suppress evidence, an appellate court

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

court erred in suppressing, or not suppressing, the evidence.” State v. Ruoho, 685 N.W.2d

451, 458 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004). “The district court’s

factual findings will not be reversed . . . unless clearly erroneous or contrary to law.” Id.

       The United States and Minnesota constitutions protect persons from unreasonable

searches and seizures. U.S. Const. Amend. IV; Minn. Const. Art. I, § 10. A warrant may

issue to search a particular place when there is probable cause to believe that “a crime has

been committed and that evidence of the crime will be found at the place to be searched.”

Ruoho, 685 N.W.2d at 456. “Generally, any container situated within a residence that is

the subject of a validly-issued warrant may be searched if it is reasonable to believe that

the container could conceal items of the kind portrayed in the warrant.” State v. Wills, 524

N.W.2d 507, 509 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).

       But during the execution of a valid warrant to search a home, a visitor to the home

may have a separate privacy interest that makes the search of the visitor’s personal

belongings unconstitutional without independent probable cause to search them. See, e.g.,

Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979) (holding unconstitutional

the search of a bar patron who happened to be located in a bar during execution of a warrant

that authorized the search of the premises and the bartender for controlled substances). The

probable-cause requirement applies to the search of home visitors because probable cause

protects the “legitimate expectations of privacy of persons, not places,” and this


                                              5
expectation is not extinguished when probable cause exists to search a place where a person

outside the purview of the search warrant happens to be. Id. (quotation omitted); see State

v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996) (“A search warrant authorizing the search

of a particular building or premises does not give the officers the right to search all persons

who may be found in it.” (quotation omitted)).

         Typically, a shoulder purse found in the possession of a person “is so closely

associated with the person that it is identified with and included within the concept of one’s

person.” Wynne, 552 N.W.2d at 220 (quotation omitted). But consistent with other

jurisdictions, Minnesota recognizes that a home visitor’s privacy interests do not include

personal belongings, such as “jackets, purses, bags, and other articles of personal property”

if the belongings are “not in the [visitors’] possession” during the execution of a valid

search warrant, and the belongings “could reasonably contain items listed in the warrant.”

State v. Couillard, 641 N.W.2d 298, 301 (Minn. App. 2002), review denied (Minn. May 15,

2002).

         In Couillard, police entered a home after “obtain[ing] a search warrant for the

residence, individuals, and vehicles present at the residence.” Id. at 299. Before issuance

of the search warrant, the defendant was one of three persons who had been detained by

police after running out of a residence in which police had observed evidence suggestive

of controlled substance sales, but before police had obtained a warrant to search the

residence. Id. This court ruled that the defendant did not have standing to challenge the

validity of the search warrant but ruled that he could challenge the search of his backpack,




                                              6
which was found inside the residence on the living room floor. Id. Upholding the search

of the backpack, this court said,

              [The defendant’s] backpack was not in his possession at the
              time of the search. The officers had reason to suspect that
              guests had come to the residence for the purpose of smoking
              marijuana. The police found the backpack near the couch in
              the living room where a tray of marijuana was openly displayed
              on the coffee table. The police could reasonably suspect that
              the backpack contained marijuana or related items described in
              the warrant.

Id. at 301.

       In analyzing home visitors’ Fourth Amendment privacy interests in their personal

belongings, this court has recognized and applied both the physical-proximity test and the

relationship test. See, e.g., Wills, 524 N.W.2d at 509-10. The physical-proximity test

focuses on “the physical possession of the item to be searched.” Id. at 510. This test

typically includes within constitutional protection an item in the personal possession of a

visitor to a place that is subject to a valid search warrant. Id. But the physical-proximity

test does not uphold the privacy interest of the visitor if “the item is not in the person’s

immediate possession.” Id. The “relationship test” “examine[s] the relationship between

the person whose personal effects are being searched and the place that is the subject of the

search.” Id. Under this test, “any container situated within a residence that is the subject

of a validly-issued warrant may be searched if it is reasonable to believe that the container

could conceal items of the kind portrayed in the warrant.” Id. at 509.

       Couillard is the Minnesota case most factually on point, and, as in Couillard,

application of either test supports upholding the constitutionality of the search of Molnau’s



                                             7
purse in this case. Molnau was sitting in the living room at the time of execution of the

search warrant, and her purse was located on a table in the kitchen. The purse was not in

Molnau’s immediate possession, and, as in Couillard, it was located in another room with

readily apparent illegal items. In the kitchen, along with the purse, the officers also

discovered a black bag on the kitchen table that contained two baggies of suspected

methamphetamine and a “glass methamphetamine pipe,” and in the freezer and on top of

the refrigerator they found suspected marijuana or hashish wax, as well as tin foil and

baggies. Because the purse was not in Molnau’s immediate possession, it was subject to

the search parameters set forth in the warrant and could properly be searched for evidence

of controlled substances or related items.1 Application of the relationship test leads to the

same result. In considering the relationship between “‘the object, the person and the place

being searched,’” the purse belonged to Molnau, a visitor, but the purse could be searched

because it was reasonable to believe that the purse could include evidence of controlled

substances and related items, which was the purpose of the search. See Wills, 524 N.W.2d

at 510 (quoting United States v. Young, 909 F.2d 442, 445 (11th Cir. 1990)).

       Finally, Molnau argues that police should have been on notice that the purse

belonged to Molnau, a visitor, because purses typically belong to females and Molnau was

the only female in the home at the time of the search. But the stipulated record includes




1
 Molnau urges us to reject the physical proximity test as too narrow. But we are “an error-
correcting court, and we apply the best law available to us.” State v. Kelley, 832 N.W.2d
447, 456 (Minn. App. 2013), aff’d, 855 N.W.2d 269 (Minn. 2014). Because the Minnesota
Supreme Court has not rejected this test, we decline to do so.

                                             8
evidence that Morris, who applied for the search warrant, had information that another

woman lived in the home with Zobel.

       For all of these reasons, the district court did not err by upholding the

constitutionality of the search of Molnau’s purse.

       Affirmed.




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