In the Matter of the Welfare of: D. M. N.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-1827

In the Matter of the Welfare of:

D. M. N.

Filed May 13, 2003

Affirmed

Lansing, Judge

Mower County District Court

File No. J40250287

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and

Patrick A. Oman, Mower County Attorney, Jonathan Olson, Assistant County Attorney, 201 First Street Northeast, Austin, MN  55912 (for appellant State of Minnesota)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN  55113-3724 (for respondent D.M.N.)

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court suppressed evidence and statements obtained during a warrantless search of a juvenile probationer's residence.  The state appeals, contending that the court incorrectly applied a reasonable-grounds standard rather than the correct reasonable-suspicion standard.  Because the evidence is insufficient to justify a search under either standard, we affirm.

F A C T S

            D.M.N. was adjudicated delinquent in September 2001 and placed on supervised probation with Mower County Correctional Services.  In March 2002 a Mower County sheriff's detective called D.M.N.'s probation officer and asked if he knew anything about a burglary of the Chief Taopi Bar.  The probation officer did not know about the burglary but thought D.M.N. might have been involved because he was on probation for a burglary offense.  In the course of the conversation the detective mentioned D.M.N.'s name as a suspect.  A short time later, the chief of police called the probation officer to discuss the burglary.  The chief had talked earlier with the detective and indicated that he suspected D.M.N. was involved in the burglary.  During this second phone call, the probation officer told the chief that they could search D.M.N.'s home "because [D.M.N.] is on probation and I have that right."  The probation officer then contacted the detective and told him of the plan to search D.M.N.'s home.

            A few hours later, the police chief, the detective, and the probation officer met at D.M.N.'s residence.  No one was at home, but the officers located D.M.N. down the street from the house, and explained their intent to search.  D.M.N. accompanied them back to his house.  The officers did not attempt to obtain consent for the search.  In an attic accessible from D.M.N.'s room the officers found fourteen bottles of unopened alcohol that linked D.M.N. to the burglary.  After the evidence was found, D.M.N. made inculpatory statements.

            The state charged D.M.N. with third-degree burglary in violation of Minn. Stat. § 609.582, subd 3 (2002).  D.M.N. moved to suppress the evidence obtained from the search of his home and his subsequent incriminating statements.  The state appeals from the district court's order granting D.M.N.'s motion to suppress the evidence and the statements.

To prevail on a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must establish unequivocally that the district court erred in its ruling, and, that unless reversed, the ruling will have a critical impact on the trial.  State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).  It is undisputed that the suppression order significantly reduces the likelihood of a successful prosecution.  Consequently, our review focuses on whether the court erred in its determination of the proper standard to apply to the search and its decision to suppress the evidence.

A search of a probationer is not "strictly governed by automatic reference to ordinary search and seizure law."  State v. Earnest, 293 N.W.2d 365, 368 (Minn. 1980).  The supervision of a probationer presents a special need of the state that permits a degree of impingement on privacy that would not be constitutional if it were applied to the public at large.  Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 3169 (1987).  Minnesota has recognized that the warrantless probable-cause search of a probationer's home by his probation officer does not violate the probationer's Fourth Amendment rights.  Earnest, 293 N.W.2d 365.  But the court specifically declined to decide whether a lesser standard than probable cause would justify such a search.  Id. at 369 n.5.  The court did indicate, however, that a search of a probationer is analogous to an "administrative search" and that the balancing test that applies to administrative searches is the test most likely to produce results consistent with underlying Fourth Amendment principles.  Id. at 368-69 n.3.

Seven years after Earnest, the United States Supreme Court applied an administrative-search rationale to uphold the warrantless search of a probationer's home without full probable cause.  Griffin, 483 U.S. 868, 107 S. Ct. 3164.  Relying in part on a Wisconsin regulation that specified "reasonable grounds" as the standard for a warrantless probationary search, the Court held that in light of the special needs of the probation system, requiring "reasonable grounds" for the search was also reasonable within the meaning of the Fourth Amendment.

The Supreme Court revisited the probation search question in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001).  The court did not extend the Griffin administrative-search analysis but instead developed a separate theoretical basis derived from general Fourth Amendment principles examining the totality of the circumstances and balancing the competing interests.  Id. at 118-19, 122 S. Ct. at 591.

In defining the totality of the circumstances in Knights the court expressly relied on a probation condition that "significantly diminished Knights's reasonable expectation of privacy."  Knights, 534 U.S. at 119-20, 122 S. Ct. at 592.  The probation order specifically included the condition that Knights submit his property to search at anytime with or without a search warrant or reasonable cause.  Id. at 114, 122 S. Ct. at 589.  The Court concluded that the balance of these considerations "requires no more than reasonable suspicion to conduct a search of this probationer's house" and "render[s] a warrant requirement unnecessary."  Id. at 121, 122 S. Ct. at 592.  The Court stated that "[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity," that "an intrusion on the probationer's significantly diminished privacy interests is reasonable."  Id. at 121, 122 S. Ct. at 593.

The state asks us to apply the "reasonable suspicion" standard set forth in Knights to the facts of this case.  We are not persuaded, however, that the reasonable-suspicion standard applies absent a specific search provision in the probation agreement.  In Knights, the Supreme Court began its analysis with the principle that the reasonableness of a search is determined by balancing "the degree to which it intrudes upon an individual's privacy" and "the degree to which it is needed for the promotion of legitimate governmental interests."  Id. at 118-19, 122 S. Ct. at 591.  In other words, "[t]he degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable."  Id. at 120, 122 S. Ct. at 592.  But in striking the balance of the reasonable-suspicion standard, the court identified the probation agreement's search condition as a "salient" factor.  Id. at 118, 122 S. Ct. at 591.

The state does not contend that D.M.N. had a probation agreement, as did Knights, that allowed for searches with or without a warrant and with or without reasonable cause.  The probation officer testified that he believed he had the right to search D.M.N.'s home because D.M.N. was on supervised probation and was a suspect in a new offense.

The district court found that the search violated D.M.N.'s Fourth Amendment rights because the police used a probationary ruse to initiate a search that was not based on reasonable grounds.  To the degree the administrative-search standard applies to a probationary search, the application of a reasonable-grounds standard does not amount to clear and unequivocal error.  But even under the minimal standard of reasonable suspicion advanced by the state, the facts do not justify the search.

Reasonable suspicion, most commonly used in the context of investigatory seizures, generally describes "a particularized and objective basis" for suspecting a person of criminal activity.  United States v. Cortez, 449 U.S. 411, 417-18, 100 S. Ct. 690, 695 (1981).  The quantum of evidence needed to demonstrate reasonable suspicion is not high, but police are required to make that showing when reasonableness is challenged.  Richards v. Wisconsin, 520 U.S. 385, 396, 117 S. Ct. 1416, 1422 (1997).  The Minnesota Supreme Court has defined reasonable suspicion as something more than an unarticulated hunch:  "that the officer must be able to point to something that objectively supports the suspicion at issue."  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).

The evidence offered to support the search does not amount to reasonable suspicion.  The probation officer testified that he had no evidence that linked D.M.N. to the burglary.  He referred generally to similar patterns but when asked was unable to provide any detail except that D.M.N. was on probation for third-degree burglary "and the fact that he wasn't caught initially, but it was something that had happened initially; that it was a pretty good burglary."  The fact that D.M.N. was on probation for burglary is insufficient, without more, to create a reasonable suspicion that he burglarized the Chief Taopi Bar.  The probation officer's suspicion was a mere hunch; the fact that it was a hunch shared by the detective and the police chief does not provide a sufficient basis to support a reasonable suspicion.

The state acknowledges that if the search were invalid, D.M.N.'s statements should be suppressed.  Because we conclude that the search of D.M.N.'s home was unlawful, the district court properly suppressed the evidence obtained from the search and D.M.N.'s subsequent incriminating statements.

            Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.