An apartment manager’s ability to enter by law and by the lease for maintenance purposes does not give the manager or staff the ability to consent to a police entry. Here, a water leak brought maintenance who saw drug use and then they called the police who came right in relying on the landlord. Exigent circumstances and inevitable discovery also rejected. State v. Dotson, 2017 Minn. App. LEXIS 90 (July 17, 2017):
The state argues that Minn. Stat. § 504B.211, subd. 4(1) and (3), allows a landlord to enter a premises without notice and provide consent for police to enter if there is an immediate need to do so. This is an issue of statutory interpretation, which this court reviews de novo. Rushton v. State, 889 N.W.2d 561, 563 (Minn. 2017). The goal of statutory interpretation is to determine the intent of the legislature. Minn. Stat. § 645.16 (2016). We construe words and phrases in a statute according to their plain and ordinary meaning. Id.; Rushton, 889 N.W.2d at 563-64.
Generally, a landlord may enter a rented unit for “a reasonable business purpose” after making “a good faith effort to give the residential tenant reasonable notice.” Minn. Stat. § 504B.211, subd. 2 (2016). “A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant’s right to prior notice of entry . . . as a condition of entering into or maintaining the lease.” Id. (emphasis added). A landlord may dispose of the notice requirement only if immediate entry is necessary to: (1) “prevent injury to persons or property because of” maintenance, security, or police issues; (2) “determine a residential tenant’s safety”; or (3) “comply with local ordinances regarding unlawful activity” within the premises. Id., subd. 4(1)-(3) (2016).
The district court, after reconsidering Dotson’s motion to suppress evidence, concluded that J.C.’s initial entry was allowed under section 504B.211, subd. 4(1), and her second entry was allowed under subdivision 4(3). The district court also concluded that subdivision 4(3) gave J.C. “actual authority to consent to law enforcement’s entry onto the premises and freezing of the scene.”
Section 504B.211 must be considered in light of the supreme court’s holding in Licari, which states that actual authority to consent to a search only exists when a landlord or property manager has common authority over the premises. 659 N.W.2d at 250. The “common authority” required by Licari is identified by the relationship of the parties to the premises, not on statutorily granted power. Id. at 250-51; see also Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7. The plain language of section 504B.211 confers only rights of access to the property for limited means. Section 504B.211 does not confer on the landlord or property manager the right of mutual use required under Licari. See Minn. Stat. § 504B.211, subds. 2-4 (providing for rights of entry by landlord for specified purposes). Thus, the district court erred when it concluded that section 504B.211, subdivision 4(1), (3), gave J.C. actual authority to consent to entry of the apartment by police.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)