STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A23-1037

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Terrell McNeal, Jr.,
                                        Appellant.

                                    Filed June 10, 2024
                                         Reversed
                                       Reyes, Judge

                             Blue Earth County District Court
                                 File No. 07-CR-22-1057

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Segal, Chief Judge; and Frisch,

Judge.

SYLLABUS

         Because appellant’s apartment door handle and lock were within the home’s

curtilage for purposes of the Fourth Amendment of the United States Constitution and

article I, section 10, of the Minnesota Constitution, law-enforcement officers were required

to obtain a search warrant supported by probable cause to swab those areas for the purpose

of detecting trace amounts of controlled substances.

OPINION

REYES, Judge

       In this appeal from a conviction of a second-degree controlled-substance crime,

appellant argues that the district court erred by denying his motion to suppress evidence

and determining that officers did not need a search warrant supported by probable cause to

swab his exterior apartment door handle and lock, the results of which were used to obtain

a search warrant for his apartment. Because we hold that appellant’s apartment door handle

and lock were within the curtilage of his home and entitled to constitutional protections,

we reverse.

                                         FACTS

       On March 24, 2022, an officer with the Minnesota River Valley Drug Task Force

applied for a search warrant to swab the exterior door handle and lock of appellant Terrell

McNeal, Jr.’s apartment door to test for trace amounts of controlled substances. The

district court issued the warrant (the first search warrant), and an officer executed the

warrant that same day.

       Appellant’s apartment was one of two apartments on the main level of a locked

building in which the individual apartment entrances were accessible from an interior

common area. The officer executing the search warrant had learned the security code to

access the common area from another officer who had obtained it from the building’s

landlord. Using the code, the officer executing the search warrant entered the common

area of the building and swabbed the exterior of appellant’s apartment door handle and

lock with a sterile swab.


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       The officer submitted the swab for analysis by an Ionscan 1 system, which detected

the presence of cocaine and MDEA, a controlled substance similar to the street drug

ecstasy. Based on that evidence and the information provided in the first warrant, officers

applied for a second search warrant to search inside appellant’s apartment. Upon executing

the second warrant, officers recovered large amounts of cash, various controlled

substances, multiple guns, and drug paraphernalia from appellant’s apartment.

       In April 2022, respondent State of Minnesota charged appellant with seven counts

related to possessing and selling controlled substances while possessing a firearm, as well

as receiving stolen property, all based on the evidence gathered during the search of

appellant’s apartment.

       Appellant requested a contested omnibus hearing to seek suppression of the

evidence that the officers obtained by executing the search warrants, arguing that the first

search warrant lacked probable cause, and therefore that the second search warrant also

failed. The district court determined that, although probable cause did not support the first

search warrant, the officers did not need it because the door handle and lock were not part

of the curtilage of appellant’s home, and he had no reasonable expectation of privacy in

them. The district court further determined that the swab was lawful under Minnesota law

because it was supported by reasonable, articulable suspicion.

       Appellant waived his right to a jury trial and agreed to a court trial on stipulated

evidence under Minn. R. Crim. P. 26.01, subd. 3, in exchange for the state dismissing all


1
 “Ionscan” refers to an Ion Mobility Spectrum and is a technology used to test for trace
amounts of controlled substances.

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charges except for count II, second-degree possession of 50 grams or 100 dose units of

hallucinogens while possessing a firearm under 

, subd. 2(a)(5)

(2020), and 609.11, subd. 5(a) (2020). The district court held appellant’s trial in February

2023, took the matter under advisement, and found him guilty and convicted him of count

II. The district court denied appellant’s motion for a downward dispositional departure

and sentenced him to a presumptive sentence of 48 months in prison.

        This appeal follows.

                                           ISSUE

        Did the district court err by denying appellant’s motion to suppress evidence that an

officer obtained based upon a swab of appellant’s apartment door handle and lock after

determining that the door handle and lock were not within the curtilage of appellant’s

home?

                                        ANALYSIS

        Appellant argues that the district court erred by determining that officers did not

need a search warrant to swab his apartment door handle and lock because the door handle

and lock were not within the home’s curtilage and therefore not constitutionally protected.

Appellant argues that this error requires reversal because the district court also determined

that the first search warrant was not supported by probable cause, and therefore the second




                                              4
search warrant also fails because it relied entirely on information from the first warrant and

the swab evidence to establish probable cause. 2 We agree.

       When reviewing a district court’s denial of a pretrial motion to suppress evidence,

appellate courts “review the district court’s factual findings for clear error and its legal

conclusions de novo.” State v. Molnau, 

 (Minn. 2017). Appellant

“bears the threshold burden of proving that [he] has a right protected by the constitution”

while the state “bears the burden of establishing that the challenged evidence was obtained

in accordance with the constitution.” State v. Edstrom, 

 (Minn. 2018).

       The United States and Minnesota constitutions require that government searches

and seizures of people’s “persons, houses, papers, and effects” be reasonable. U.S. Const.

amend. IV; Minn. Const. Art. I, § 10. Unless an exception applies, searches conducted

without a warrant are per se unreasonable under the Fourth Amendment. Katz v. United

States, 

 (1967). A search can occur “when the government physically

intrudes onto a constitutionally protected area.” Edstrom, 

 (citing

United States v. Jones, 

, 406-07 n.3 (2012)). “[T]he Fourth Amendment

protects the curtilage of a house and [] the extent of the curtilage is determined by factors

that bear upon whether an individual reasonably may expect that the area in question should



2
  Appellant has not challenged the district court’s determination that officers had
reasonable suspicion to swab appellant’s apartment door handle and lock. Neither has
appellant argued that the Minnesota Constitution provides greater protection in this context
than the United States Constitution, and our analysis therefore addresses Fourth
Amendment protections only. See Kahn v. Griffin, 

 (Minn. 2005)
(acknowledging that states cannot interpret their constitutions to provide less protection
than federal constitution).

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be treated as the home itself.” United States v. Dunn, 

 (1987). When

determining the extent of curtilage, a court should consider four factors: (1) “the proximity

of the area claimed to be curtilage to the home,” (2) “whether the area is included within

an enclosure surrounding the home,” (3) “the nature of the uses to which the area is put,”

and (4) “the steps taken by the resident to protect the area from observation by people

passing by.” 

. These factors should be used to analyze the “centrally relevant

consideration” of “whether the area in question is so intimately tied to the home itself that

it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” 

       Whether the warrantless collection of a sample from an apartment door handle and

lock violates a party’s constitutional rights is an unanswered question in Minnesota. See

State v. Barrios-German, No. A17-0906, 

, at *6 (Minn. App. Apr. 16,

2018) (declining to decide whether officers’ warrantless swab of apartment door was

unlawful); State v. Vagle, No. A18-0878, 

, at *7 (Minn. App. Apr. 22,

2019) (“We therefore do not consider whether the warrantless collection of a sample [from

appellant’s apartment door handle] for Ionscan analysis violated [appellant’s] Fourth

Amendment rights, which appears to be an issue of first impression.”).

       In Edstrom, the supreme court considered “whether a warrantless narcotics-dog

sniff in the hallway outside [of] respondent’s apartment violated respondent’s right to be

free from unreasonable searches under the United States or Minnesota Constitution.” 

. Because the Minnesota Constitution cannot provide less protection than

the United States Constitution, the supreme court began its analysis with the United States

Constitution. 

. The supreme court applied the Dunn factors to conclude that “the


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privacies of life associated with the home do not extend into the area immediately outside

Edstrom’s apartment, such as the door seam,” and therefore that area “is not curtilage of

[his] home.” 

 (emphasis added). The Edstrom court also concluded that the

Minnesota Constitution required only that officers have reasonable, articulable suspicion

to conduct the dog sniff lawfully. 

.

       Applying Edstrom and Dunn, here the district court determined that “[Dunn] factors

two through four . . . weigh[ed] in favor of finding the door handle to fall outside [the]

curtilage.” The district court reasoned that appellant’s apartment door handle and lock

were not curtilage of the home because an apartment door seam “is nearly indistinguishable

from an apartment door handle except that the door handle is physically attached to the

door,” a distinction that it found “immaterial because the door seam is an area or space

between the door and the door frame, rather than an actual physical object.”

       However, this case is factually distinct from Edstrom, and we are persuaded that

analysis of the Dunn factors supports that appellant’s apartment door handle and lock were

within the curtilage of his home. “Curtilage” is the area “immediately surrounding and

associated with the home.” State v. Chute, 

 (Minn. 2018) (quotation

omitted); Florida v. Jardines, 

 (2013) (quotation omitted). Unlike in Edstrom,

in which the supreme court analyzed whether the area where the police dog stood as it

conducted a sniff of appellant’s apartment door was curtilage, the officers here went a step

further and collected a sample from a door handle and lock that were physically attached

to and indivisible from appellant’s home.




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       Under the Dunn factors, an apartment door handle and lock are readily

distinguishable from an apartment door seam. For the first factor of the area’s proximity

to the home, appellant’s apartment door handle and lock were attached to and part of the

door—the entrance to his home—weighing heavily in favor of finding them to be within

the curtilage. See Edstrom, 

 (“The first [Dunn] factor suggests that the

hallway immediately adjacent to Edstrom’s apartment door could be part of the curtilage

of the apartment. This area is physically very close to his home—it is immediately

adjacent.”). For the second factor, although the apartment door handle and lock were not

within an enclosure surrounding appellant’s home, they were a part of the enclosure that

contained his home. Thus, they “should be treated as the home itself.” Dunn, 

. As to the third Dunn factor of the nature and use of the area, although those at issue

here faced a common area, apartment door handles and locks are primarily used to enter,

exit, or exclude others from a home, actions that are reserved to the tenant, the tenant’s

invitees, and in limited circumstances, the landlord. The nature of the apartment door

handle and lock’s use weighs heavily towards concluding that they are within the curtilage.

The fourth factor is neutral here, because although appellant took no steps to protect the

apartment door handle or lock from passersby, there was nothing readily visible on the

door handle or lock that might be observed. Considered together, the Dunn factors weigh

towards the apartment door handle and lock being “so intimately tied to the home itself”

that they should be accorded constitutional protection. 

.

       Further, unlike in Edstrom, in which the holding relates to a dog sniff of an

apartment door and door seam, the officer’s search here required a physical contact by


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swab of the apartment door handle and lock, the entry mechanism to the home. See

Jardines, 

 (“When the Government obtains information by physically

intruding on persons, houses, papers, or effects, a search within the original meaning of the

Fourth Amendment has undoubtedly occurred.” (quotations omitted)); see also United

States v. Bain, 

 (1st Cir. 2017) (concluding that apartment door’s lock

was “within the unit’s curtilage even if . . . not within the unit itself” and that officers

conducted unreasonable search by inserting key into lock to obtain information). 3

Although members of the public and law-enforcement officers generally have an implied

license to approach a home, physically knock on the front door, and wait briefly to be

received, they have no implied license to remove material from the door handle and lock

for laboratory testing. Jardines, 

 (“To find a visitor knocking on the door is

routine . . . ; to spot that same visitor exploring the front path with a metal detector, or

marching his bloodhound into the garden before saying hello and asking permission, would

inspire most of us to . . . call the police. The scope of a license—express or implied—is

limited not only to a particular area but also to a specific purpose.”); Chute, 

 (applying Jardines). Here, the officer’s conduct by swabbing appellant’s apartment

door handle and lock for evidence was not within the scope of the implied license described

in Jardines, as anyone “observing the officer’s actions objectively would conclude that his

[sole and exclusive] purpose” was to collect evidence from appellant’s door handle and

lock. Chute, 

. “[T]he background social norms that invite a visitor to



3
    We cite this case for its persuasive value only.

                                                9
the front door do not invite him there to conduct a search,” Jardines, 

, and an

officer’s purpose must be limited to what “any private citizen might do when visiting

another’s property,” such as knocking on the door to make contact with the property owner,

Chute, 

 (quotation omitted). The scope of the implied license does not

depend upon the type of dwelling, whether it involves a door to a private residence or an

apartment door.

       Moreover, existing persuasive authority generally supports that a home’s door

handle is within the home’s curtilage. See United States v. Charles, 

 (D.V.I. 1999) (“Clearly, the doorknob on the defendant’s front door of the [rented]

residence is within the curtilage of the home” and “agents’ warrantless search of the

doorknob [by sample and analysis by Ionscan detector] for marijuana residue violated

[defendant’s] Fourth Amendment rights” and required suppression), aff’d, 

(3d Cir. 2002); United States v. Carter, No. 020-CR-00035-MJD-KMM, 

 (D. Minn. Sept. 18, 2020) (referring to townhome’s storm door and residence

door as within curtilage for purposes of conducting swab for Ionscan analysis), report and

recommendation adopted, No. 20-CR-35 (MJD/KMM), 

 (D. Minn. Oct.

19, 2020). Because an apartment door handle and lock serve the same function as those

for a privately owned home, they are indistinguishable for constitutional purposes.

       In summary, we hold that appellant’s apartment door handle and lock were within

the curtilage of his home, and therefore, absent an exception, officers were required to

obtain a search warrant supported by probable cause to swab them for the purpose of

detecting trace amounts of controlled substances.


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                                       DECISION

      We hold that appellant’s apartment door handle and lock were within the curtilage

of the home protected by the Fourth Amendment of the United States Constitution and

article I, section 10 of the Minnesota Constitution. Because the parties do not challenge

the district court’s determination that the first search warrant to swab the apartment door

handle and lock was not supported by probable cause, and because the second search

warrant relied entirely upon information provided in the first search warrant, as well as

evidence obtained by its execution, we reverse.

       Reversed.




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