State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1961

State of Minnesota,
Respondent,

vs.

Joshua Micheal Bursch,
Appellant.

Filed December 18, 2017
Affirmed
Hooten, Judge

Polk County District Court
File No. 60-CR-13-1873

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

John D. Ellenbecker, St. Cloud, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
S Y L L A B U S
An individual who is not on probation but knowingly resides with a probationer has
a diminished expectation of privacy in common areas of the residence shared with the
probationer. A legitimate probation -based search of such shared areas does not violate
Fourth Amendment rights even if the search is done over the objection of the individual
who is not on probation.
2
O P I N I O N
HOOTEN, Judge
In an appeal from his felony convictions of felon in possession of a firearm and
receiving stolen property, appellant claims that the district court erred in failing to suppress
evidence recovered during a search by probation officers and other law enforcement—over
his objection and without a warrant —of a residence he shared with two felons who m he
knew were on probation. Because the record does not support appellant’s claim that, as a
non-probationer, his Fourth Amendment rights were violated during the search, we affirm.
FACTS
Appellant Joshua Michea l Bursch shared a residence in Polk County with his
brother and Jacob Syverson, both of whom were on felony probation and had signed
probation agreements that provided their consent to warrantless searches of their residence
by probation officers. While Bursch was a felon, he was not on probation during the time
period relevant to this appeal.
Investigator Nathan Nelson of the Crookston Police Department received a call from
a concerned citizen who believed that persons living at the residence were in possession of
stolen goods. The matter was later referred to Deputy Matthew Hitchen of the Polk County
Sheriff’s Office, who was able to confirm that Bursch, his brother, and Syverson were
living at the residence. Upon learning that Bursch’s brother and Syverson were both on
probation, Hitchen contacted the p robation officer for Bursch’s brother regarding the
citizen’s tip. The probation officer and Hitchen agreed that, in light of the information
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from the concerned citizen , a warrantless probation search of the residence should be
conducted.
The next day, Nelson, Hitchen, Investigator Nathan Rasch, two other police officers,
and two probation officers went to Bursch’s residence to conduct the probation search.
Outside the residence, they encountered Bursch who was getting into his vehicle to leave.
Bursch initially declined to let them into the residence, but relented after Hitchen indicated
that, if necessary, they would knock down the door to perform the search. Bursch
acknowledged that he was aware that his brother and Syverson were on probation and
therefore were subject to searches. Before entering the residence, Rasch asked Bursch if
there were any firearms inside. Bursch responded that he had firearms in his bedroom.
Upon entering the residence, Bursch led law enforcement to a bedroom that was
shared by his brother and Syverson. In the hallway on the way to the brother’s bedroom,
Hitchen passed by the open door to Bursch’s bedroom, through which he saw firearms.
Bursch attempted to close the door to his bedroom , explaining that he did not want t hem
entering. However, Hitchen advised him that he needed to perform a protective sweep to
make sure that no one was hiding in the bedroom. Bursch relented after Hitchen explained
to him that they would not be “searching” the bedroom, but merely making sure that there
was no one hiding in it. Hitchen entered the bedroom and observed several firearms.
Upon discovering the firearms, the law enforcement officers, who were aware that
Bursch was a felon and was not allowed to possess firearms, arrested Bursch. As a result
of the search of the residence, several firearms and stolen goods were found. Law
enforcement also found d rug paraphernalia while performing a warrantless search of a
4
pickup truck and a Jeep on the property. Later, during an interview with Rasch, Bursch
admitted to owning the firearms found in his bedroom.
After an omnibus hearing, the district court found that the evidence seized from the
vehicles and appellant’s statements to law enforcement about the drug paraphernalia were
inadmissible. However, the district court denied Bursch’s motion to suppress the evidence
found in the residence and his statements regarding that evidence.
The parties then agreed to submit the case to the distric t court as a stipulated -facts
trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, thereby reserving
the dispositive pretrial suppression issue for appeal. The district court found Bursch guilty
of receiving stolen property pursuant to Minn. Stat. § 609.53, subd. 1 (201 2), and being a
felon in possession of a firearm in violation of Minn. Stat. § 62 4.713, subd. 1(2) ( Supp.
2013). This appeal followed.
ISSUES
I. Did Bursch forfeit his argument that the dist rict court erred by denying his
motion to suppress because of inadequate briefing on appeal?
II. Did the district court err by failing to suppress the evidence found during the
search of Bursch’s residence and Bursch’s statements to law enforcement about that
evidence?
ANALYSIS
I. Forfeiture

Bursch raises a novel question under Minnesota law: if officers conduct a probation
search, how are the Fourth Amendment rights of a non -consenting, non-probationer third
5
party affected? The state argues that Bursch forfeited his right to address this issue by not
properly supporting it in his brief .1 Arguments are forfeited if they are presented in a
summary and conclusory form, do not cite to applicable law, and fail to analyze the law
when claiming that errors of law occurred. In re Conduct of Karasov , 805 N.W.2d 255,
271 n.12 (Minn. 2011); see also State v. Krosch , 642 N.W.2d 713, 719 (Minn. 200 2)
(stating that arguments are forfeited if the “brief contains no argument or citation to legal
authority in support of the allegations”); State v. Modern Recycling, Inc., 558 N.W.2d 770,
772 (Minn. App. 1997) (“An assignment of error based on mere assertion and not supported
by any argument or authorities in appellant’s brief is [forfeited] and will not be considered
on appeal unless prejudicial error is obvious on mere inspection.” (quotation omitted)).
The state argues that Bursch does not adequately brief the issue because he only
cites to a single case—Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006)—which
he asserts is analogous to his case, even though it deals with consent searches, not probation
searches. Because there are no Minnesota cases specifically discussing this issue, and
Bursch is not able to cite to any state or federal caselaw that directly supports his position,
we conclude that Bursch’s brief, although sparse in legal support, sufficiently analyzes
general Fourth Amendment principles for us to address the issue.

1 The state in its brief, and the caselaw we cite, refer to this argument as waiver instead of
forfeiture. However , the Minnesota Supreme Court recentl y clarified that a right is
forfeited when not timely asserted, and that it is waived when voluntarily given up by a
party. State v. Beaulieu, 859 N.W.2d 275, 278 n.3, 284 (Minn. 2015). The real question
is whether Bursch forfeited the issue, not whether he waived it.
6
II. Fourth Amendment Challenge
When the facts are undisputed, appellant courts review de novo pretrial orders on
motions to suppress. State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008). Since the
parties do not dispute the district court’s findings of fact from the omnibus hearing, we
apply de novo review.
The Fourth Amendment protects “[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. “The touchstone of the Fourth Amendment is reasonableness.” United
States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 591 (2001). We determine whether a
search is reasonable by balancing “the degree to which it intrudes upon an individual’ s
privacy and . . . the degree to which it is needed f or the promotion of legitimate
governmental interests.” Id., 534 U.S. at 119, 122 S. Ct. at 591.
Typically, a search is reasonable only when conducted on the basis of probable
cause and with a warrant. Id., 534 U.S. at 121, 122 S. Ct. at 59 2–93. Even if police have
probable cause , a search conducted without a warrant is “presumptively unreasonable
under the Fourth Amendment.” State v. Anderson , 733 N.W.2d 128, 136 (Minn. 2007)
(citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980)). However,
there are circumstances where the Fourth Amendment’s reasonableness standard does not
require police to obtain a warrant. See Knights, 534 U.S. at 121, 122 S. Ct. at 592 . And,
there are circumstances whe re a lower standard than probable cause satisfies the Fourth
Amendment. Id. The search of a probationer’s residence qualifies for both exceptions.
The United States Supreme Court has held that a “warrantless search of [a probationer],
7
supported by reasonable suspicion and authorized by a condition of probation, [is]
reasonable within the meaning of the Fourth Amendment.” Id., 534 U.S. at 122, 122 S. Ct.
at 593; see also Anderson, 733 N.W.2d at 139–40 (adopting the reasoning of Knights and
explaining that probation with search condi tions significantly diminishes probationer’s
reasonable expectation of privacy).
Probationers have a significantly diminished expectation of privacy because
probation “is a form of criminal sanction” and “probationers do not enjoy the absolute
liberty to which every citizen is entitled. ” Knights, 534 U.S. at 119, 122 S. Ct. at 5 91
(quotation omitted) . And, the government has a legitimate interest in monitoring
probationers to facilitate reintegration into the community and monitor compliance with
probation conditions, coupled with a justified concern that a probationer “will be more
likely to engage in criminal conduct than an ordinary member of the community.” Id., 534
U.S. at 121, 122 S. Ct. at 592.
Neither the Supreme Court nor Minnesota courts have ad dressed whether the
warrantless search of a probationer’s residence, based on reasonable suspicion, violates the
Fourth Amendment rights of a non-consenting non-probationer living in the same
residence.
A. Entering Bursch’s Residence
Bursch does not dispute that his brother and Syverson had diminished expectations
of privacy in the residence , nor does he argue that the officers did not have reasonable
suspicion to perform a warrantless search of the residence. Rather, he argues that as a non-
probationer, he did not have a diminished expectation of privacy just by virtue of living
8
with the two probationers, and therefore the search violated his Fourth Amendment rights
because he explicitly refused to consent to it. We disagree.
Non-probationers who choose to live with probationers “assume the risk that they
too will have diminished Fourth Amendment rights in areas shared with the probationer.”
State v. Adams, 788 N.W.2d 619, 623 (N.D. 2010). Bursch was voluntarily living with two
probationers. He himself has been on probation in the past and he admitted to Rasch that
he knew that his brother and Syverson were subject to probation searches. By living with
his brother and Syverson, Bursch voluntarily and knowingly took on the risk that his
otherwise private residence might be subjected to probation searches by the state. See State
v. Davis, 965 P.2d 525, 532 (Utah App. 1998) (explaining that probationer consents to
searches of “any areas of the residence over which he had common authority with [the non-
probationer]” and that law enforcement was allowed to search those areas if it had
reasonable suspicion); see also People v. Robles, 3 P.3d 311, 317 (Cal. 2000) (holding that
those who live with a probationer have normal expectations of privacy in areas under their
exclusive control “so long as there is no basis for [law enforcement] to reasonably believe
the probationer has authority over those areas ”); People v. Schmitz, 288 P.3d 1259, 1267
(Cal. 2012) (reiterating the holding of Robles); 5 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment , § 10.10(d), at 556–57 n.138 (5th ed. 2012) (stating
that when probationer lives with non-probationer “the search may nonetheless extend to all
parts of the premises to which the probationer . . . has common authority”).
Relying on Randolph, Bursch responds that even though his brother and Syverson
may have agreed to warrantless searches of the residence as part of their probation
9
agreements, he objected to the search of their shared residence. In Randolph, one co-tenant
consented to a search of a residence while the other co -tenant objected to the search. 547
U.S. at 107, 126 S. Ct. at 1519. The Supreme Court held that “a warrantless search of a
shared dwelling for evidence over the express refusal of consent by a physically present
resident cannot be justified as reasonable as to him on the basis of consent given to the
police by another resident.” Id., 547 U.S. at 120, 126 S. Ct. at 1526. Relying on common
social expectations, the Randolph Court pointed out that “the co-tenant wishing to open the
door to a third party has no recognized authority in law or social practice to prevail over a
present and objecting co -tenant,” noting that the co -tenant’s “disputed invitation, without
more, gives a police officer no better claim to reasonableness in entering than the officer
would have in the absence of any consent at all.” Id., 547 U.S. at 114, 126 S. Ct. at 1523
(emphasis added). Here, however, there is more.
Someone who chooses to cohabitate with another assumes “the risk that one of their
number might permit the common area to be searched.” United States v. Matlock, 415 U.S.
164, 171 n. 7, 94 S. Ct. 988, 993 n.7 (1974). Unlike in Randolph, the social expectation
here was not that one of Bursch’s co -inhabitants might agree to a search of their shared
residence. Rather, Bursch knew that both of his co -inhabitants had already agreed to a
search of the residence as part of their respective probation agreements. Bursch cannot
simultaneously be aware that his co -inhabitants have agreed, as a required condition of
their probation, to consent to a search by their probation officer, and maintain a reasonable
belief that he has the sa me privacy interests in those areas of the residence he shares with
the probationers as he has in those under his exclusive control. Accordingly, we hold that
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a non-probationer who knowingly lives with a probationer has a diminished expectation of
privacy in areas of the residence shared with the probationer.
On the other side of the scale, the government’s legitimate interest in ensuring
compliance with probation conditions supports the reasonableness of this search. If a non-
probationer were allowed to object to a search of a probationer’s residence just by virtue
of living with the probationer, “it would effectively thwart all [probation] searches.” State
v. West, 517 N.W.2d 482, 486 (Wis. 1994).2 By allowing non-probationers to prevent law
enforcement from conducting the search of a probationer’s residence, we would be creating
a loophole whereby probationers are allowed to evade some of the conditions of their
probation simply by making the strategic decision to live with a non-probationer. And this
problem is not alleviated by requiring law enforcement to obtain a warrant to enter the
residence because search conditions are included in probation agreements precisely to
enable law enforcement to search a probationer’s residence without any forewarning. This
loophole would interfere with the state’s ability to properly enforce the terms of probation,
as well as impinge upon the state’s ability to keep the general public safe from potentially
law-breaking probationers. Based upon this record, Bursch knowingly lived with
probationers and therefore had a diminished expectation of privacy in areas of the residence

2 West upheld a parole search conducted over the objections of a non-parolee living in same
residence. For the purposes of our Fourth Amendment analysis, we treat a parole search
and a probation search the same. See Samson v. California, 547 U.S. 843, 850–52, 126 S.
Ct. 2193, 2198 –99 (2006) (noting that although “parolees have fewer expectations of
privacy than probationers,” parole and probation agreements with search conditions both
significantly diminish their subjects’ reasonable expectations of privacy); see also Knights,
534 U.S. at 119 –20, 122 S. Ct. at 591 –92 (holding that a search condition in a probation
agreement significantly diminishes a probationer’s reasonable expectation of privacy).
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that he shared with them. We hold that the district court did not err in holding that law
enforcement did not violate Bursch’s Fourth Amendment rights upon entering the
residence over his objection.
B. Entering Bursch’s Bedroom
While the entry by law enforcement into the residence did not violate Bursch’s
Fourth Amendment rights, that does not mean Bursch’s Fourth Amendment rights are
completely stripped away by living with a probationer. Law enforcement may enter a
residence over the objections of a non-probationer co-occupant, but officers are permitted
to search only areas that are under the control of the probationer, like a probation er’s
bedroom, or areas where the probationer exerts shared control, such as a common area
shared by all residents. See Robles, 3 P.3d at 317 (“[T]hose who live with a probationer
maintain normal expectations of privacy over their persons. In addition, they retain valid
privacy expectations in residential areas subject to their exclusive access or control, so long
as there is no basis for officers to reasonably believe the probationer has authority over
those areas.”). Law enforcement may not search areas that are under the non-probationer’s
exclusive control, like the non -probationer’s bedroom, just because they live with a
probationer. See id. (“That persons under the same roof may legitimately harbor differing
expectations of privacy is consistent with the principle that one’s ability to claim the
protection of the Fourth Amendment depends upon the reasonableness of his or her
individual expectations.”). Law enforcement is only allowed to conduct a search of an area
if “the facts available to the officers . . . support a reasonable belief that the probationer has
at least common authority over the area searched.” Davis, 965 P.2d at 533. This approach
12
accounts for the state’s interest in enforcing the terms of probation by not allowing
probationers to take advantage of a loophole or shield themselves from probation searches
by living with a non -probationer, while at the same time taking into account the non-
probationer’s Fourth Amendment rights by not allowing law enforcement to have
unfettered access to the entire residence upon entry.
Therefore, absent a showing that it was reasonable for law enforcement to believe
that the probationers had shared aut hority of Bursch’s bedroom, Bursch had a full
expectation of privacy in his bedroom and was within his rights to close the door to it or
object to a search of it. Since there is nothing in the record to indicate that law enforcement
reasonably believed that Bursch’s brother or Syverson exerted any authority over Bursch’s
bedroom, probation officers and other law enforcement were not allowed to enter it merely
because they were conducting a probation search of the residence.
But this does not end our inquir y. The state argues t hat, even assuming Bursch’s
higher expectation of privacy in his bedroom, probation officers and other law enforcement
could nonetheless enter Bursch’s bedroom under the plain -view exception to the Fourth
Amendment. We agree. Police officers can seize evidence that is in plain view, so long as
they “have not violated the Fourth Amendment in arriving at the spot from which the
observation of the evidence is made.” Kentucky v. King , 563 U.S. 452, 463, 131 S. Ct.
1849, 1858 (2011). La w enforcement entered the residence under the authority of a
probation search and proceeded to the hallway. Since the hallway is a common area, the
probation officers and other law enforcement were within their authority to be present in
the hallway.
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From where he stood in the hallway, Hitchen saw firearms in Bursch’s bedroom.
That the firearms were in plain view, however, does not alone justify their entry: “first, not
only must the item be in plain view; its incriminating character must also be imme diately
apparent.” Horton v. California , 496 U.S. 128, 136, 110 S. Ct. 2301, 2308 (1990)
(quotation omitted). Before entering the residence, Bursch had admitted that he kept
firearms in his bedroom. And Hitchen knew that Bursch was not permitted to lawfully
possess firearms. The “incriminating character” of the firearm, therefore, was
“immediately apparent” to Hitchen. We conclude that the officers justifiably entered the
room under the plain-view exception to the Fourth Amendment’s warrant requirement.
The district court determined that law enforcement was allowed to enter Bursch’s
bedroom to perform a protective sweep. Bursch disagrees, but cites no authority in support
of his argument. Two types of protective sweeps are allowed. State v. Bergerson , 671
N.W.2d 197, 202 (Minn. App. 2003) (adopting Maryland v. Buie, 494 U.S. 325, 110 S. Ct.
1093 (1990)), review denied (Minn. Jan. 20, 2004). With the first type, police officers may
look in “spaces immediately adjoining the place of arrest, such as closets, from which an
attack could be immediately launched,” without the need for probable cause or reasonable
suspicion. Id. (quotation omitted). With the second type, officers may search areas “near,
but not immediately adjoining, the place of arrest,” but must have reasonable articulable
suspicion to justify the sweep. Id. Protective sweeps must also be limited to cursory
inspections of spaces where someone could be hiding and s hould not last longer than
necessary to make sure that there is no danger in the area. Id. If police have probable cause
to arrest a defendant prior to a search of his person and formally arrested the defendant
14
soon after the search, then it does not mat ter whether the search came before or after the
arrest. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564 (1980).3
Bursch’s admission to having firearms in his room, and the visibility of the firearms
from the hallway , each independently gave law enforcement the reasonable articulable
suspicion to perform a protective sweep of his bedroom under the second prong of
Bergerson. It does not matter that the protective sweep came prior to Bursch’s arrest
because Hitchen already knew that Bursch was not allowed to possess firearms and Hitchen
had probable cause to arrest him when they conducted the protective sweep. See id. Law
enforcement has to be allowed to take actions to protect themselves when entering an
unfamiliar environment, and this i s especially true when they know that firearms are
involved. Hitchen’s entrance into Bursch’s bedroom was a legitimate protective sweep.
C. Pretext
Bursch also argues in passing that the officers used the fact that his brother and
Syverson were on probation as a pretext to search the residence without a search warrant.
Bursch barely develops this argument and does not cite to any authority to support it.
Courts analyze Fourth Amendment challenges objectively, instead of evaluating “the
actual motivations of individual officers .” Knights, 534 U.S. at 122, 122 S. Ct. at 593
(quotation omitted); State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) ( explaining that
if there is “an objective legal basis for an arrest or search, the arrest or search is lawful even

3 Although Rawlings discusses a search incident to arrest rather than a protective sweep,
we apply the same logic here.

15
if the officer making the arrest or conducting the search based his or her action on the
wrong g round or had an improper motive ”). The probation officers and other law
enforcement had an objective legal basis for the search because they received the tip from
a concerned citizen about criminal activity and knew that Bursch’s brother and Syverson
were on probation. Bursch’s pretext argument fails.
D E C I S I O N
This case raises a novel issue of law in Minnesota, and Bursch does not lose his
right to have us decide the issue just because there is limited caselaw that he can rely upon
to support his position. Because Bursch knew that his brother and Syverson were subject
to probation searches and chose to reside with them anyway, he continued to have a right
of privacy in his bedroom, but had a diminished expectation of privacy in the common
areas of the residence he shared with the m. Accordingly, Bursch’s Fourth Amendment
rights were not violated when law enforcement entered the residence over his objections .
And because Hitchen knew that Bursch was not permitted to possess firearms and observed
a firearm in Bursch’s bedroom from th e hallway, his entry into Bursch’s private bedroom
and the later seizure of those firearms were justified under the plain-view exception to the
Fourth Amendment. Even if Hitchen had not seen any firearms from the hallway, his entry
into Bursch’s bedroom was a legitimate protective sweep, justified by Bursch’s admission
to having firearms in his bedroom and the law enforcement officers’ knowledge that Bursch
was not allowed to possess firearms.
Affirmed.