STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-0428

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                Jennifer Marie Hansen,
                                      Appellant.

                                 Filed March 18, 2024
                                       Affirmed
                                    Connolly, Judge

                              Aitkin County District Court
                                File No. 01-CR-21-436

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

James P. Ratz, Aitkin County Attorney, Sebastian Mesa White, Assistant County Attorney,
Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,

Judge.

SYLLABUS

      A police search of garbage set out for collection does not violate the Fourth

Amendment to the United States Constitution or article I, section 10 of the Minnesota





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
Constitution even if a local municipal ordinance prohibits the inspection or removal of

items from a private waste receptacle.

OPINION

CONNOLLY, Judge

       In this direct appeal from the judgment of conviction, appellant challenges the denial

of her motion to suppress evidence. She argues that (1) the warrantless search of her

garbage by law enforcement violated federal and state constitutional protections against

unreasonable searches and (2) the warrant violated statutory requirements for a nighttime

search. We affirm.

                                          FACTS

       On May 13, 2021, respondent State of Minnesota charged appellant Jennifer Marie

Hansen with one count of third-degree controlled substance crime (methamphetamine in

school zone), in violation of 

, subd. 2(a)(6) (2020); two counts of

fifth-degree controlled substance crime, in violation of 

, subd. 2(1)

(2020); and one count of possession of a hypodermic needle, in violation of 

, subd. 1 (2020). The complaint alleged that police executed a search warrant at

11:54 p.m. on May 12 at Hansen’s residence, which was located next to softball fields

owned by the Aitkin School District. During the search of her residence, the police found

hypodermic needles, a substance that field-tested positive for methamphetamine, and paper

that field-tested positive for LSD.




                                             2
       Hansen moved to suppress the evidence derived from the search warrant because

(1) the evidence supporting the warrant was seized in violation of the Fourth Amendment

to the U.S. Constitution and article I, section 10 of the Minnesota Constitution, and

(2) there was an insufficient basis for a nighttime warrant.

       Following a contested omnibus hearing, the district court denied Hansen’s motion

to suppress. In its order, the district court found that the officer “removed two trash bags

from the garbage can placed on the right of way outside of [Hansen’s] home” and used

information from the trash bags to apply for a nighttime search warrant of Hansen’s home.

The district court determined that Hansen did not have a reasonable expectation of privacy

in her garbage set out for collection and rejected Hansen’s argument that law enforcement

trespassed by searching her waste container in violation of an Aitkin County ordinance.

The district court also determined that, “[b]ecause of the residence’s close proximity to

school grounds, public safety was best served by executing the warrant during nighttime

hours when children would not be present” and therefore a nighttime warrant was justified.

       The district court found Hansen guilty of all four counts following a stipulated-facts

trial under Minn. R. Crim. P. 26.01, subd. 3. The district court convicted Hansen of

misdemeanor possession of a hypodermic needle, dismissed the two fifth-degree

controlled-substance-crime charges, and imposed a statutory stay of adjudication for the

third-degree controlled substance crime.

       Hansen appeals.1


1
  Following oral argument, we requested supplemental briefing addressing, among other
issues, whether a local ordinance can affect the scope of the protections under the Fourth

                                             3
                                          ISSUES

I.     Did law enforcement’s warrantless search of Hansen’s garbage, which was placed
       on the public right of way, violate the Fourth Amendment or article I, section 10 of
       the Minnesota Constitution?

II.    Did the search warrant for Hansen’s home violate the statutory requirements for a
       nighttime warrant?
                                     ANALYSIS

       Hansen argues that the district court erred by denying her motion to suppress

evidence obtained from the warranted search of her residence. She contends that the

evidence to support the search warrant was obtained in violation of her constitutional rights

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

the Minnesota Constitution. In the alternative, she argues that the warrant application did

not establish reasonable suspicion to justify a nighttime search.

       When reviewing a district court’s decision on a pretrial motion to suppress evidence,

we review the district court’s factual findings for clear error and its legal determinations

de novo. State v. Gauster, 

 (Minn. 2008). We address Hansen’s

arguments in turn.

I.     The police did not violate the Fourth Amendment or article I, section 10 of the
       Minnesota Constitution by searching Hansen’s garbage.
       Both the United States and Minnesota Constitutions protect “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Although




Amendment and article I, section 10 of the Minnesota Constitution. The parties submitted
briefing as directed.

                                             4
warrantless searches are generally unreasonable, not all government conduct implicates

these constitutional protections. State v. Edstrom, 

 (Minn. 2018).

Rather, a search within the meaning of the Fourth Amendment occurs (1) “when the

government intrudes upon a person’s reasonable expectation of privacy” or (2) “when the

government physically intrudes onto a constitutionally protected area.” 

       Hansen argues that law enforcement’s warrantless inspection and removal of her

garbage, which was placed on the public right of way, was an unreasonable search

forbidden by the Fourth Amendment and article I, section 10. We disagree.

       The United States Supreme Court and the Minnesota Supreme Court have held that

law enforcement’s warrantless search of garbage set out for collection does not violate

federal or state constitutions. In California v. Greenwood, the United States Supreme

Court concluded that an individual does not have a reasonable expectation of privacy in

garbage left at the curb for collection and consequently held that the Fourth Amendment

does not prohibit the warrantless search and seizure of such garbage. 

(1988). And in State v. McMurray, the Minnesota Supreme Court concluded that there was

no principled basis to recognize a greater expectation of privacy for garbage under the

Minnesota Constitution.     

 (Minn. 2015).           As a result, the

Minnesota Supreme Court held that article I, section 10 of the Minnesota Constitution does

not “afford greater protection against warrantless searches of garbage set out for collection

than the Fourth Amendment to the United States Constitution.” 

. Under




                                             5
Greenwood and McMurray, the warrantless search of Hansen’s garbage—which was

placed on the public right of way—was not an unreasonable search.2

       Hansen argues that, despite this binding precedent, the warrantless inspection and

removal of her garbage by law enforcement is still unconstitutional under the property-

rights theory of the Fourth Amendment revitalized in United State v. Jones, 

(2012). In Jones, the United States Supreme Court explained that the “reasonable-

expectation-of-privacy test has been added to, not substituted for, the common-law

trespassory test.” 565 U.S. at 409. Hansen asserts that, even if she does not have a

reasonable expectation of privacy in her garbage, her garbage qualifies as constitutionally

protected “effects” or “papers” and thus the police engaged in a trespassory search. See id.

at 404; see also Florida v. Jardines, 

 (2013) (“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)).

       We see no basis for including a person’s garbage, left outside for collection beyond

the curtilage of a residence, within the “persons, houses, papers, and effects” protected by

the Fourth Amendment. In McMurray, the Minnesota Supreme Court clarified that “the



2
 We reject Hansen’s suggestion that the facts here are distinguishable from Greenwood
and McMurray because, in those cases, the police took the garbage from the garbage
collectors, while the police here took Hansen’s garbage from her garbage can. Greenwood
and McMurray hold that a defendant’s reasonable expectation of privacy ends when the
garbage is placed outside the curtilage for collection. See Greenwood, 

;
McMurray, 

. It is therefore immaterial whether the garbage was in the
garbage can or with the garbage collector at the time of the challenged police conduct.

                                             6
traditional property-based understanding of the Fourth Amendment is not at issue” if “the

police procured the garbage without trespassing on the curtilage of [the defendant’s]

premises.” 

 n.4. That understanding—that garbage set out for collection

is abandoned property unprotected by the Fourth Amendment—is consistent with

Minnesota caselaw preceding Greenwood. See, e.g., State v. Krech, 

(Minn. 1987) (explaining that boxes and bags placed in a garbage can behind a duplex were

“abandoned property in which defendant no longer had a reasonable expectation of

privacy”); State v. Dreyer, 

 (Minn. 1984) (affirming warrantless

“search of garbage which had been placed on the curb for routine collection”); State v.

Oquist, 

 (Minn. 1982) (concluding that “the examination of the

garbage, which was procured without trespassing on the defendant’s premises, was

lawful”).

       We are also unpersuaded by Hansen’s reliance on Aitkin County ordinances

governing solid waste.3 The premise of Hansen’s argument is that local ordinances may

enlarge the constitutional protections under the Fourth Amendment or provide a basis to

read article I, section 10’s protections for garbage more broadly than the Fourth

Amendment. Both Greenwood and McMurray reject that premise, and Hansen identifies




3
 These ordinances provide, as relevant to Hansen’s argument, that title to nonhazardous
solid waste remains with the generator and that it is illegal to inspect or remove the contents
of another person’s waste receptacle without prior authorization. Aitkin County, Minn.,
Solid Waste Ordinances Art. IV, §§ 2.03(C), 3.08(D) (2019). There is no exception in the
ordinance for law enforcement.

                                              7
no contrary authority.4 In Greenwood, the United States Supreme Court rejected the

argument “that concepts of privacy under the laws of each State are to determine the reach

of the Fourth Amendment.” 

.             Greenwood underscored that the

reasonableness of a search under the Fourth Amendment does not “depend[] on the law of

the particular State in which the search occurs”; instead, “the Fourth Amendment analysis

must turn on such factors as our societal understanding that certain areas deserve the most

scrupulous protection from government invasion.” 

 (quotation omitted). And in

McMurray, the Minnesota Supreme Court considered, but rejected, the contention that

“changes in the content of garbage and in city ordinances relating to garbage disposal and

container design” require article I, section 10 to be interpreted more broadly than the Fourth

Amendment. 

. Accordingly, local ordinances, regardless of their

character, cannot enlarge the protections of the Fourth Amendment or article I, section 10

of the Minnesota Constitution against searches by law enforcement. If that were the case,

an individual’s constitutional rights under the Fourth Amendment and article I, section 10

would depend on what county the individual resides in.



4
  Hansen directs this court to the Iowa Supreme Court’s decision in State v. Wright, which
held that the warrantless removal of trash bags set out for collection qualified as an
unreasonable search and seizure under the Iowa Constitution. 

, 420 (Iowa
2021). In its analysis, the Iowa Supreme Court considered local ordinances to determine
whether garbage set out for collection qualified as an “effect” protected by the Iowa
Constitution. 

. But Iowa courts have a different jurisprudential approach to the
interpretation of the Iowa Constitution, which underscores the duty of “independent
interpretation” and that “[f]ederal constitutional law is not a framework.” 

. By
contrast, our supreme court will depart from Fourth Amendment precedent only in “limited
situations” and has declined to do so in this context. McMurray, 

. We
therefore do not find Wright’s analysis persuasive.

                                              8
       In sum, even if we assume, without deciding, that Hansen retained title to her

garbage and that the police violated the county ordinances by inspecting and removing

Hansen’s garbage, those ordinances do not alter federal or state constitutional prohibitions

against unreasonable searches and seizures. We therefore hold that a police search of

garbage set out for collection is not a violation of the Fourth Amendment to the United

States Constitution or article I, section 10 of the Minnesota Constitution even if a municipal

ordinance prohibits the inspection or removal of items from a private waste receptacle. As

a result, the warrantless search of Hansen’s garbage, which was placed on the public right

of way, did not violate the Fourth Amendment to the United States Constitution or article

I, section 10 of the Minnesota Constitution, and the district court did not err by denying

Hansen’s motion to suppress on this basis.

II.    The warrant application establishes the reasonable suspicion required for a
       nighttime search.

       In the alternative, Hansen argues that the search warrant application did not justify

a nighttime search because it contained only “boilerplate language.”

       

 (2022) provides that:

                     A search warrant may be served only between the hours
              of 7:00 a.m. and 8:00 p.m. unless the court determines on the
              basis of facts stated in the affidavits that a nighttime search
              outside those hours is necessary to prevent the loss,
              destruction, or removal of the objects of the search or to protect
              the searchers or the public.

, subd. 1.       “[A]n application for a nighttime warrant under

section 626.14 must establish reasonable suspicion that a nighttime search is necessary to

preserve evidence or to protect officer or public safety.” State v. Jackson, 

                   9
163, 167-68 (Minn. 2007). “[W]e give great deference to the issuing judge’s determination

of probable cause for a search warrant,” including “whether a nighttime search warrant

should be authorized under 

.” State v. Bourke, 

, 927-

28 (Minn. 2006) (quotation omitted). “The issuing judge’s determination must be based

on the factual allegations contained in the affidavit in support of the warrant application

and the reasonable inferences to be drawn therefrom.” 

 (quotation omitted).

       Hansen is correct that the section of the application explaining the need for a

nighttime warrant does not use particularized language and that “boilerplate language” may

be insufficient under the reasonable-suspicion standard. See 

 But the search warrant

application for Hansen’s residence includes more than just boilerplate language to justify

a search. See 

 The application alleges that Hansen’s residence was “directly adjacent”

to a school district’s tennis court and softball fields, and that a man with active warrants

for his arrest, as well as an order for protection, was at her residence. We agree with the

district court that it is reasonable to infer, based on the proximity of Hansen’s home to the

school grounds, “that public safety was best served by executing the warrant during

nighttime hours when children would not be present.” Given the allegations and reasonable

inferences from the application, as well as our deferential standard of review, we conclude

that the state met its burden to show there was a reasonable suspicion that a nighttime

search of Hansen’s residence was necessary under 

 to protect public

safety. The district court did not err by denying the motion to suppress on this basis.




                                             10
                                       DECISION

       Because the warrantless search of Hansen’s garbage did not violate the Fourth

Amendment to the United States Constitution or article I, section 10 of the Minnesota

Constitution despite the existence of a local municipal ordinance prohibiting the inspection

and removal of items from a private waste receptacle, and the nighttime warrant was

supported by reasonable suspicion, the district court did not err in denying Hansen’s motion

to suppress evidence from her residence.

       Affirmed.




                                            11