State of Minnesota, Respondent, vs. Brent Norman Korst, et al., Appellants.

This opinion will be unpublished and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

C8-02-1504

 

State of Minnesota,
Respondent,
 
vs.
 
Brent Norman Korst, et al.,
Appellants.

 

Filed September 30, 2003

Affirmed

Stoneburner, Judge

 

Carver County District Court

File No. K0011982

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael A. Fahey, Carver County Attorney, Tara E. Keehr, Assistant County Attorney, Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

 

Thomas A. Volk, Richard L. Swanson Law Office, 1059 Stoughton Avenue, Box 85, Chaska, MN 55318 (for appellants)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            On appeal from convictions of controlled-substance crime in the first degree (Brent Korst), and conspiracy to manufacture methamphetamine (Monica Korst), appellants argue that any consent to search their home was invalid because it was obtained by deception, and if valid consent was given, that the consent was withdrawn as to a search of the master bedroom.  Because the district court did not clearly err by finding that appellant Monica Korst consented to a search of the home, including the master bedroom, we affirm.

FACTS

 

            On November 16, 2001, Sergeant Jason Kamerud of the Southwest Metro Drug Task Force received a report from a concerned citizen that the residents of 113 North Ash Street, Chaska, were manufacturing methamphetamine at that address and that the house was a "garbage house" and a dangerous environment for the two children living there.  Appellants Brent Korst and Monica Korst and their two children were the residents of the subject property.

            Kamerud, a mandated reporter of suspected child abuse, immediately relayed the report to Carver County Social Services.  The report reached the desk of Carver County social worker Carol Cole, who contacted Kamerud to discuss the status of the law-enforcement investigation on the report.  Kamerud told Cole that the law-enforcement investigation would take a month or two.  Because Cole wanted to act immediately on the child-endangerment report, Cole and Kamerud went to the Korsts' home on November 21, 2001, to investigate.  Carver County Social Service's policy is for social workers making such home visits to be accompanied by a law-enforcement officer for their protection and for assistance in removing children from a dangerous environment, if necessary.  Cole also asked Kamerud to accompany her because of his experience with methamphetamine laboratories, which made it possible for him to assess the immediacy of danger posed if a methamphetamine laboratory was found.

            Korsts' 17-year-old daughter answered Cole's knock on the door.  Cole identified herself, said she was there because of a report of possible child abuse, and asked the girl to get her mother.  Appellant Monica Korst then came to the door.  Cole identified herself to Monica Korst and said they had received a child-protection report regarding the safety of the children that alleged possible unsafe conditions in the home.  Cole explained that in such situations "we come through and look at the house to determine if the situation is unsafe."  Monica Korst opened the door and Cole and Kamerud entered.  Once inside the living room, Cole turned on a tape recorder.  A transcription of the resulting tape recording was introduced into evidence at the omnibus hearing.

            Monica Korst accompanied Cole and Kamerud on an inspection of the first floor of the home.  Monica Korst told Kamerud and Cole that Brent Korst was asleep upstairs.  At one point Cole stated, "The kids are older so it's not like the kids would be placed out of home right now because of things like this.  . . .  But we do a walk through just to be sure everything is safe."  When the downstairs had been examined, Cole asked Monica Korst "do you care if we look upstairs?"  Monica Korst said "No, I don't care, come here," and led them upstairs.    During the inspection both Cole and Kamerud indicated that they had seen much worse conditions in other homes and that, as Kamerud said, "This ain't no big deal."  Cole told Monica Korst that she would make note of the problem areas and would come back for another inspection after Monica Korst had an opportunity to correct the problems.  Monica Korst said they could come back the following Monday.

            After looking at the children's rooms, Kamerud said, "Do you want to give Brent the heads up that we are going to take a peek in [the master bedroom]?"  Monica Korst responded, "In my room?" and Kamerud said, "Yeah, you don't mind do you?"  Monica Korst responded, "In my room I do right now."

            According to Kamerud, as Monica Korst spoke, she continued to lead them toward the master bedroom as this additional conversation ensued: 

Monica Korst:           He's asleep in there.  Just give me till Monday morning, you guys can [go] through the entire house.

                        . . . .

 

Cole:                           Do you want to give him the heads up that we are here, that we would like to come in and take a peek.

 

Monica Korst:           Well he's in bed though.

 

Cole:                           That's all right.  Like I said we've been in worse places. But I need to, I need to see this part.

 

According to Kamerud and Cole, Monica Korst then opened the door to the master bedroom and said "see, he's asleep in here."  Kamerud responded, "That's all right, I just need to stick my head in and make a quick assessment."  Kamerud observed chemicals and other items associated with methamphetamine manufacture in the bedroom.  He then froze the situation, called for backup, and requested a search warrant.  The subsequent search of the house revealed chemicals and equipment involved in methamphetamine manufacture and appellants were arrested.  Brent Korst was charged with controlled-substance crime in the first degree and child endangerment; Monica Korst was charged with conspiracy to manufacture methamphetamine and child endangerment.

            Appellants moved to suppress the evidence seized, asserting that the warrantless entry and search of their home by law enforcement was illegal.  The district court denied the motion to suppress, finding that the entry was lawful and that the evidence found in the bedroom was in plain view.  Appellants then submitted to a court trial based on stipulated facts.  The district court found Brent Korst guilty of controlled-substance crime in the first degree and Monica Korst guilty of conspiracy to manufacture methamphetamine.[1]  This appeal followed.

D E C I S I O N

 

            Appellants argue that the district court erred by determining that Kamerud and Cole entered their property lawfully under Minn. Stat. § 626.556, subd. 10 (2000).  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  The statute provides in relevant part that a local welfare agency which receives a report of neglect, physical abuse, or sexual abuse of a child shall immediately conduct an assessment, and if the report alleges a violation of a criminal statute involving endangerment, "the local law enforcement agency and local welfare agency shall coordinate planning and execution of their respective investigation and assessment efforts . . . ."  Minn. Stat. § 626.556, subd. 10(a).  Nothing in the statute authorizes an unwarranted search of a private residence.

            Under the Fourth Amendment to the United States Constitution and article I, section 10, of the Minnesota Constitution, searches conducted outside of the judicial process of obtaining a search warrant are per se unreasonable unless justified by an exception to the warrant requirement.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).  Only two circumstances justify a warrantless entry to search a person's home: (1) consent; or (2) probable cause and exigent circumstances.  Id. at 222.  Nothing in the statute or case law suggests that an investigation under Minn. Stat. § 626.556 creates a separate circumstance authorizing a warrantless entry into a private residence.

            In State v. Smith, we held that a law enforcement officer and social worker, who went to an apartment to investigate an anonymous complaint of possible child abuse, were not unlawfully on Smith's property when, after no one responded to their knock, they walked along the outside of an apartment building, looked into an open window, then walked to the back of the building to investigate noises.  State v. Smith, 386 N.W.2d 403, 405 (Minn. App. 1986), review denied (Minn. July 16, 1986).  We noted that the officer and social worker had the statutory duty to conduct an immediate assessment of such reports and the authority to interview an alleged victim at any place where the alleged victim might be found.  Id. at 404-05.  In addition, we concluded that in light of that duty and authority, the actions of the social worker and police officer were "completely compatible with the scope of the officer's original purpose of being on the premises."  Id. at 405.  But nothing in Smith authorizes an entry into a residence.  To the extent that the district court concluded that Cole and Kamerud lawfully entered Korsts' home under Minn. Stat. § 626.556, subd. 10, the district court erred.  A more likely interpretation of the district court's statement, however, is that Cole and Kamerud were on a lawful mission when they went to Korsts' home and indicated a desire to inspect the home for conditions dangerous to children. 

            The parties agree that probable cause and exigent circumstances do not exist in this case and that only consent could validate Cole's and Kamerud's entry into the Korsts' home.  The determination of whether consent was voluntary is a question of fact and is based on the totality of the circumstances.  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  The district court's factual findings are subject to a clearly erroneous standard of review.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

            The district court implicitly found that Monica Korst consented to Cole's and Kamerud's entry into the home.  See State v. Buswell, 460 N.W.2d 614, 620 (Minn. 1990) (affirming legality of search based in part on district court's implicit finding).  The record supports this finding.  Monica Korst allowed Cole and Kamerud to enter, and led them through the house, knowing that they intended to look for dangerous conditions.

            But the Korsts argue that Cole's failure to identify Kamerud as a law-enforcement agent, and failure to state that they were investigating a report of methamphetamine manufacture on the premises, constituted deceit and misrepresentation.  Because even a tacit misrepresentation used to obtain consent to a search can rise to such a level of deception that the consent is invalidated, the Korsts argue that any consent given by Monica Korst was invalid.  See State v. Schweich, 414 N.W.2d 227, 230 (Minn. App. 1987).

            In Schweich, officers represented that they were searching for a rifle, but after finding the rifle, continued to search for drugs that they had been told were on the premises.  The officers asserted that they did not misrepresent the purpose of the search, but simply failed to inform Schweich of an additional purpose for the search.  This court affirmed the district court's determination that Schweich's consent to a full search of his apartment was invalid because it was procured through misrepresentation.  Id. at 230.

            Korsts' situation is distinguishable from Schweich's.  Here, Monica Korst was told that the search was for conditions that endangered the children.  There is no dispute that methamphetamine manufacture is a dangerous process and involves the use of chemicals that could pose a danger to children.  Because Cole and Kamerud were lawfully at the residence to investigate a child endangerment report, and because they clearly explained that to Monica Korst, they did not deceive or misrepresent their purpose.  Although the district court did not explicitly address the issue of whether Moncia Korst's consent was obtained though misrepresentation, we can infer a finding that failure to identify Kamerud as a law-enforcement officer, and failure to specifically identify methamphetamine manufacture as one of the dangerous conditions reported, did not invalidate Monica Korst's consent.  This implicit finding is not clearly erroneous.

            Once consent to enter a premises is given, police conduct is limited by the scope of the consent given.  See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991) (stating that standard for measuring scope of suspect's consent is that of objective reasonableness what typical reasonable person would have understood by exchange between officer and suspect).  A lawful search extends to the entire area in which the object of the search may be found.  United States v. Ross, 456 U.S. 798, 820-21, 102      S. Ct. 2157, 2170-71 (1982).  Consent can be given verbally or by action.  State v. Buschkopf, 373 N.W.2d 756, 768 (Minn. 1985) (noting consent may be inferred if defendant exhibits some affirmative act or intent that police conduct the search), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990); State v Powell, 357 N.W.2d 146, 149 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985). 

            In this case, Monica Korst specifically gave Cole and Kamerud permission to look for dangerous conditions upstairs, and she led them upstairs.  Although her subsequent statement indicated that she did not want them to look in the master bedroom on that day, her action of continuing to walk toward the master bedroom and opening the door supports the district court's finding that she consented to letting Kamerud look into the bedroom from the open door.  When Kamerud looked into the bedroom, he immediately identified materials used in methamphetamine manufacture.  Kamerud froze the scene and obtained a warrant for seizure of evidence of methamphetamine manufacture.  Because Kamerud and Cole were involved in a search for conditions dangerous to the children, and because Monica Korst led them to the bedroom and opened its door, thereby allowing them to look in, Kamerud's discovery of the evidence of methamphetamine manufacture did not exceed the scope of Monica Korst's consent.

            Affirmed.

[1] The district court did not make any findings on the counts charging child endangerment.  The sentencing transcripts indicate that these counts were dismissed without prejudice.