                         This opinion will be unpublished and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
                                    A14-1623

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               William Marvin Boyenga,
                                      Appellant.

                                  Filed May 26, 2015
                                       Affirmed
                                    Hooten, Judge

                             Mower County District Court
                              File No. 50-CR-13-2014

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

Kristen Nelson, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and

Hooten, Judge.

                       UNPUBLISHED OPINION

HOOTEN, Judge

      On appeal from his conviction of fifth-degree possession of a controlled substance,

appellant argues that the district court erred by denying his motion to suppress because
the evidence was obtained as the result of an unconstitutional search of his house. We

affirm.

                                           FACTS

          On the afternoon of September 3, 2013, Austin Police Officer Kris Stein

responded to a report of a hit-and-run accident. He learned that the suspect vehicle was a

black pickup truck. Austin Police Sergeant Joseph Milli, who was also on duty that day,

ran a license plate search on the suspect vehicle, which matched the plate number of an

older black pickup truck registered to appellant William Marvin Boyenga. Sergeant Milli

was familiar with Boyenga because, in 2004, he had executed a search warrant of

Boyenga’s house and had found a large amount of fresh marijuana. Boyenga’s house

was located three blocks from the location of the hit-and-run accident, and Sergeant Milli

went directly to the house.

          When Sergeant Milli arrived at Boyenga’s house, he did not see a black pickup

truck in the driveway. Sergeant Milli indicated at the suppression hearing that the house

was located on the corner of two residential streets. The front door faced south, and the

side door faced east. Each door was visible from the street and had a sidewalk leading up

to it from the street, as well as a concrete stoop. There was an awning and a light fixture

above both doors. There were house numbers and a mailbox next to the front door, but

there were no railings outside the front door. The side door was closest to the garage, and

there were railings connected to the side-door stoop.

          Sergeant Milli parked near the side door, then walked up and knocked on the door.

There was no response, but Sergeant Milli detected a faint odor of fresh marijuana


                                              2
coming from the house. He then walked over to the garage, looked into a garage

window, and saw a black pickup truck. The sergeant knocked on the side door again, but

again got no response. He looked into another garage window, saw that the license plate

matched the suspect vehicle, and noticed fresh damage on the vehicle. He then saw

Boyenga looking at him through the blinds inside the house, and the sergeant motioned

for him to come outside. By then, Officer Stein and another officer had arrived at

Boyenga’s house.

       Boyenga exited the side door of his house. He walked into the yard and spoke

with the officers about the accident. He seemed confused by some of the questioning and

was not able to give his address. He also gave different versions of the accident. The

officers asked for his driver’s license and proof of insurance. Boyenga retrieved his

proof of insurance from inside his pickup truck, but stated that his driver’s license was

inside his house. Sergeant Milli testified to the following:

              MILLI: [Boyenga] started towards the house. I followed him.
              He opened the [side] door. He started [to go] in the house. I
              took one step in. He turned around. He grabbed me by the
              shoulders and tried to push me out, saying, “You can’t come
              in here.”
              PROSECUTOR: And what did you do?
              MILLI: As soon as he opened the door, I was hit by an
              overwhelming smell of fresh marijuana. When he grabbed
              me and started pushing me, I grabbed him and I pulled him
              out of the house.

Based on Sergeant Milli’s training and experience, he believed that there was a large

amount of marijuana growing in the house. After Boyenga and Sergeant Milli exited the

house, Boyenga was detained and eventually taken into custody.



                                             3
       Officer Stein also testified at the suppression hearing and stated that he and

Sergeant Milli followed Boyenga from the yard to his house. He testified that, as he was

standing behind Sergeant Milli on the stoop, he immediately smelled a strong odor of

marijuana after Boyenga opened the side door.

       Sergeant Milli called Austin Police Detective Travis Heickley and asked him to

come to the scene and assist.         Detective Heickley later drafted a search warrant

application based on the officers’ suspicion that marijuana was present in the house. The

supporting affidavit to the warrant application indicates that Detective Heickley had over

26 years of law enforcement experience, was specially trained in narcotics investigations,

and had taken part in numerous narcotics investigations over the course of his career.

The affidavit also states in relevant part:

                      On this day, 09-03-2013 at approximately 1438
              hours[,] Austin Police Sergeant Milli had arrived at
              [Boyenga’s residence] to conduct a follow-up investigation
              into a hit and run accident . . . .

                     Upon arriving at the residence . . . , Milli attempted to
              contact the registered owner Boyenga at the residence with
              negative results. . . . Milli [eventually] made contact with a
              person at the residence who identified himself as Boyenga
              who was occupying the residence and admitted to Milli of
              being involved in an auto accident.

                     Milli observed Boyenga to be anxious and confused
              and followed Boyenga back to his residence from the garage
              to obtain his [driver’s] license. Milli followed behind
              Boyenga into the residence and immediately recognized the
              strong odor [of] fresh marijuana coming from the residence.
              Boyenga pushed Sgt. Milli towards the residence exit door[,]
              at which point in time Milli took physical custody of Boyenga
              and arrested him. . . .



                                              4
                     Sgt. Milli then requested on-call Detective Heickley to
              come to the scene based on observations Milli made from the
              residence regarding the overwhelming presence of marijuana
              odor from the residence. Upon arrival Detective Heickley
              was advised of the situation and also observed the strong odor
              of fresh marijuana from the back door steps.

                     Following Boyenga’s arrest[] officers observed the
              resident windows to be covered and two security cameras
              were installed on the outside of the residence perimeter. . . .

                     Heickley knows from past cases that Boyenga was
              arrested on two prior occasions for 3rd degree possession of
              marijuana with intent to sell . . . and felony 5th degree
              controlled substance [crime] . . . . On both occasions
              Boyenga had marijuana plants and grow equipment.

A search warrant was issued the same day, authorizing police to search Boyenga’s house

for marijuana and marijuana-related evidence. During the search, officers found fresh

marijuana plants, dried marijuana plants, marijuana seeds, drug paraphernalia, and

marijuana growing equipment. Police seized a total of 80.61 ounces of marijuana.

       Boyenga was charged with one count of fifth-degree sale of a controlled substance

and one count of fifth-degree possession of a controlled substance.         He moved to

suppress the evidence seized during the execution of the search warrant, claiming that the

search warrant was invalid because it included information obtained during an unlawful

entry into his house.

       The district court denied Boyenga’s motion to suppress, reasoning that

              it was not until Milli had partially entered the residence that
              [Boyenga] turned and made his first and only action barring
              either officer from entry. At no time prior did [Boyenga]
              indicate to the officers that they were not allowed to follow
              him into the house while he looked for his driver[’s]
              license. . . . Officer Milli’s and Stein’s detection of the


                                            5
              overpowering smell of marijuana occurred before either
              officer entered the home. Both officers were lawfully present
              at the door while investigating the traffic accident when they
              first detected the [odor]. This occurred before either officer
              stepped into the house. It was also detected inside the back
              door by the officers before they were stopped by [Boyenga]
              from proceeding any [farther] into the home. The detection
              of the strong odor of fresh marijuana by either officer outside
              of [the] home and just inside the door . . . was not obtained in
              violation of [Boyenga’s constitutional rights].

After the district court denied the motion, the state dismissed the fifth-degree sale of a

controlled substance charge. Boyenga waived his right to a jury trial, and the district

court conducted a stipulated-evidence court trial pursuant to Minn. R. Crim. P. 26.01,

subd. 4.    The district court found Boyenga guilty of fifth-degree possession of a

controlled substance and sentenced him to a stayed prison sentence of one year and one

day with conditions, including the requirement that he serve 180 days in jail. This appeal

followed.

                                      DECISION

       Boyenga argues that the evidence obtained as a result of the search warrant should

have been suppressed because Sergeant Milli’s entry into the house and his ensuing

observations violated the Fourth Amendment. In response, the state argues that the

officers smelled a strong odor of marijuana before entering Boyenga’s house and, in the

alternative, received implicit consent to enter the house.

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

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

court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590



                                              6
N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings of fact under a

clearly erroneous standard, but we review legal determinations de novo. State v. Bourke,

718 N.W.2d 922, 927 (Minn. 2006). Findings of fact are clearly erroneous if “we are left

with the definite and firm conviction that a mistake occurred.” State v. Diede, 795

N.W.2d 836, 846–47 (Minn. 2011). If there is reasonable evidence to support the district

court’s findings, we will not disturb them. State v. Rhoads, 813 N.W.2d 880, 885 (Minn.

2012).

         The Fourth Amendment of the United States Constitution and article I, section 10,

of the Minnesota Constitution prohibit unreasonable searches and allows for the issuance

of search warrants only upon a showing of probable cause. U.S. Const. amend. IV;

Minn. Const. art. I, § 10. “The exclusionary rule generally requires the suppression of

evidence acquired as a direct or indirect result of an unlawful search.” State v. Lieberg,

553 N.W.2d 51, 55 (Minn. App. 1996).

         When faced with a challenge to the validity of a search warrant, this court’s task

on appeal is to determine whether the issuing judge had a “substantial basis” for

concluding that probable cause existed. State v. Secord, 614 N.W.2d 227, 229 (Minn.

App. 2000) (quotation omitted), review denied (Minn. Sept. 13, 2000). We examine the

totality of the circumstances to make this determination. Id. The issuing judge is

required “to make a practical, commonsense decision” as to whether, given all the

circumstances set forth in the search warrant application, “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Id. (quotations

omitted). “In determining whether probable cause exists, both the district court and the


                                             7
reviewing court may consider only the information in the application for the search

warrant. We pay great deference to the district court’s determination of probable cause

supporting a search warrant.” Id. (quotation and citation omitted).

       Boyenga does not dispute that the search warrant on its face was supported by

probable cause. The search warrant application states that Boyenga appeared to be

“anxious and confused” when he spoke to the officers about the hit-and-run accident. It

states that Sergeant Milli followed Boyenga “into the residence and immediately

recognized the strong odor [of] fresh marijuana coming from the residence.”             The

application does not indicate whether Sergeant Milli had consent to enter Boyenga’s

house, and it does not clearly indicate where Sergeant Milli was standing when he first

detected the strong odor of marijuana.      When Detective Heickley arrived, he “also

observed the strong odor of fresh marijuana from the [side] door steps.” The application

states that two security cameras were installed outside the house and also states that

Boyenga was arrested on two prior occasions for marijuana-related offenses. Based on

the totality of the circumstances, we conclude that the issuing judge had a substantial

basis for concluding that probable cause existed to believe that marijuana would be found

inside Boyenga’s house.

       But, Boyenga argues that the search warrant was invalid because the evidence

relied upon for the search warrant, i.e., the strong order of marijuana, was obtained as a

result of the illegal entry by police into his house. Boyenga maintains that, absent the

illegal entry, the police officers would not have had sufficient evidence to obtain a search




                                             8
warrant, and the district court erred by denying his motion to suppress the evidence

obtained as a result of the execution of the search warrant.

           “The right to be secure in the place which is one’s home, to be protected from

warrantless, nonconsensual intrusion into the privacy of one’s dwelling, is an important

[F]ourth [A]mendment right.”        State v. Olson, 436 N.W.2d 92, 96 (Minn. 1989).

Warrantless searches are per se unreasonable, subject to limited exceptions. State v.

Othoudt, 482 N.W.2d 218, 221–22 (Minn. 1992).             The state bears the burden of

establishing the existence of an exception to the warrant requirement. State v. Ture, 632

N.W.2d 621, 627 (Minn. 2001).           “Generally, evidence seized in violation of the

[C]onstitution must be suppressed.” State v. Jackson, 742 N.W.2d 163, 177–78 (Minn.

2007).

           The district court determined that Boyenga consented to Sergeant Milli’s entry

because “it was not until Milli had partially entered the residence that [Boyenga] turned

and made his first and only action barring either officer from entry. At no time prior did

[Boyenga] indicate to the officers that they were not allowed to follow him into the house

. . . .”

           We disagree that Boyenga consented to Sergeant Milli’s entry. “[P]olice do not

need a warrant if the subject of the search consents.” State v. Brooks, 838 N.W.2d 563,

568 (Minn. 2013). To justify a warrantless search based on consent, the state must prove

that the consent was freely and voluntarily given. Id. We examine the totality of the

circumstances to determine whether consent was voluntary, including “the nature of the




                                              9
encounter, the kind of person the defendant is, and what was said and how it was said.”

State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).

       The record indicates that Boyenga did not affirmatively invite either officer into

his house.   The officers “did not knock or in any way seek permission to enter”

Boyenga’s house. Othoudt, 482 N.W.2d at 222. Nothing in the record indicates that

Boyenga’s conduct manifested consent—for example, he did not motion for the officers

to follow him, and he did not hold the door open for them. See id. at 223 (“We have

never found that a law enforcement officer had consent to enter a dwelling without

evidence of some indication, by someone, that the officer was invited inside.”). Not

explicitly objecting to an officer’s entry is insufficient to establish consent. Cf. Dezso,

512 N.W.2d at 880 (“Failure to object is not the same as consent.”). Because the state

did not prove that Boyenga consented to Sergeant Milli’s entry, the district court erred by

concluding that the police legally entered Boyenga’s house.

       However, we conclude that the district court did not err in determining that the

evidence obtained by the police officers was not the product of Sergeant Milli’s illegal

entry. Based on the testimony of the police officers at the suppression hearing, the

district court found that Sergeant Milli and Officer Stein detected “the overpowering

smell of marijuana . . . before either officer entered the home.” Sergeant Milli testified

that, “[a]s soon as [Boyenga] opened the door, I was hit by an overwhelming smell of

fresh marijuana.” He also testified that, when Boyenga “initially opened the door to enter

the residence, I was hit with the smell of marijuana.” Officer Stein testified that, “[w]hen

the door was initially opened, I did smell a strong odor of marijuana.” He clarified that


                                            10
he smelled this strong odor while he “was still on the steps outside of the house to the

[side] door.” Both officers first detected the strong odor of marijuana as they were

standing on the side-door stoop of Boyenga’s house, which is a place where they were

lawfully allowed to stand. See State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987)

(“[P]olice do not need a warrant or even probable cause to approach a dwelling in order

to conduct an investigation if they restrict their movements to places visitors could be

expected to go (e.g., walkways, driveways, porches) . . . .” (Quotation omitted)). No

Fourth Amendment search took place when the officers initially observed the

incriminating evidence that led them to seek a search warrant. Moreover, Sergeant

Milli’s subsequent unconsented-to entry into Boyenga’s house did not yield any

additional incriminating evidence because Sergeant Milli made no additional

observations from that standpoint. See Segura v. United States, 468 U.S. 796, 815, 104

S. Ct. 3380, 3391 (1984) (“[E]vidence will not be excluded as ‘fruit’ unless the illegality

is at least the ‘but for’ cause of the discovery of the evidence. Suppression is not justified

unless the challenged evidence is in some sense the product of illegal governmental

activity.” (Emphasis added.) (Quotation omitted.)).

       The record supports the district court’s finding that the critical evidence utilized in

the search warrant was obtained prior to Sergeant Milli’s entry into Boyenga’s house: a

strong odor of fresh marijuana emanating from inside the house—an odor that was strong

enough to lead the officers to suspect that there was a felony-level amount of fresh

marijuana inside the house. The exclusionary rule does not apply here because the

exclusionary rule prohibits only the “introduction of evidence seized during an unlawful


                                             11
search.” State v. Lozar, 458 N.W.2d 434, 438 (Minn. App. 1990) (emphasis added),

review denied (Minn. Sept. 28, 1990).

      Because there was no violation of Boyenga’s Fourth Amendment rights and the

evidence utilized in the search warrant was lawfully obtained, we conclude that the

district court did not err by denying Boyenga’s motion to suppress.

      Affirmed.




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