State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1425

State of Minnesota,
Appellant,

vs.

Khyan Anwau Whitley,
Respondent.

Filed February 13, 2023
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-22-619

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for appellant)

Lisa Lopez, Acting Fourth District Public Defender, Paul J. Maravigli, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Jesson , Judge; and
Klaphake, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JESSON, Judge
Respondent Khyan Anwau Whitley admitted to investigators that she was driving
her car when it caused a crash that killed one victim and injured two more people. But the
district court suppressed her confession because it came after a warrantless search of her
car when it was parked in her driveway. Appellant State of Minnesota challenges that
ruling, arguing that suppression of this evidence has a critical impact on its ability to bring
a case against Whitley, Whitley’s car was not on property afforded the constitutional
protections of the home (referred to as curtilage), and even if it was, the search was justified
by the exigency exception to the warrant requirement. Though suppression of this evidence
does seriously jeopardize the state’s ability to successfully prosecute Whitley, we hold that
Whitley’s car was in the curtilage of her home when it was parked in her driveway . And
exigent circumstances did not justify the warrantless search. As a result, we affirm.
FACTS
On November 13, 2021, police responded to a motor-vehicle crash in Minneapolis.
Officers and first responders found a vehicle with major damage and three injured
passengers. A witness heard the crash, observed a black Dodge Charger fleeing the scene,
collected a license plate that came off the fleeing vehicle, and gave police this information
and the license plate. Officers learned that the vehicle was registered to Whitley at her
home in Minneapolis.
Investigators did not follow up on this information until three weeks later, the day
after one of the victims succumbed to injuries from the accident and died at the hospital.
Investigators went to Whitley’s house and located a black Dodge Charger with extensive
3
front-end damage in Whitley’s driveway. A tarp partially covered the Charger. The police
officers pulled up the tarp to view the license plate on the car that matched the license plate
recovered at the scene of the accident. Investigators then knocked on the front door of the
house, spoke with Whitley’s son who told them she was not home, and towed the vehicle.
The next day, investigators met with Whitley, who admitted that the damage on the
front end of her car was because she was driving the vehicle at the time of the November 13
accident. She stated that she fled the scene due to not having a driver’s license or insurance,
drove the vehicle home, and covered it with the tarp.
The state charged Whitley with one count of criminal vehicular homicide and one
count of criminal vehicular operation .1 Whitley filed a motion to suppress the evidence
obtained as a result of the police entering her driveway and lifting the tarp off of her car
parked there, arguing that this intrusion amounted to a warrantless search in violation of
the Fourth Amendment, making the evidence inadmissible. The state opposed this motion,
arguing that the vehicle was not in the curtilage of Whitley’s residence, and even if it was,
exigent circumstances justified the warrantless search. The district court granted Whitley’s
motion.
The state appeals.
DECISION
I. The district court’s order granting Whitley’s motion to suppress had a critical
impact on the state’s case.

The state may appeal pretrial orders from the district court when the state can show
that “the district court’s alleged error, unless reversed, will have a critical impact on the

1 These crimes violate Minnesota Statutes section 609.2112, subdivision 1(a)(7) (2020) and
Minnesota Statutes section 609.2113, subdivision 2(7) (2020), respectively.
4
outcome of the trial.” Minn. R. Crim. P. 28.04, subd. 2(1). To do so, the state bears the
burden of showing that (1) the district court’s ruling was erroneous and (2) the ruling will
have a critical impact on the state’s ability to prosecute the case. State v. Zais,
805 N.W.2d 32, 35-36 (Minn. 2011) (quotation omitted). The state does not have to show
that conviction is impossible after the pretrial order, only that the prosecution’s likelihood
of success is seriously jeopardized. State v. Underdahl, 767 N.W.2d 677, 683 (Minn.
2009).
Here, the state argues that a critical impact exists because of the exclusion of
Whitley’s statement that she was the person driving the car during the crash. Whitley
contends that the state still has testimony from the witness who heard the accident, the
detached license plate found at the scene, the name and address of the Charger’s registered
owner (which it could determine from the license plate found at the scene), and the
testimony of the officers who observed the damaged Charger at Whitley’s house.
Because the sum of the evidence cited by Whitley cannot demonstrate that she was
the driver during the collision, we agree with the state. In order to successfully prosecute
the two crimes the state charged, it must prove that Whitley was the driver who caused the
collision and that she left the scene.
2 Excluding Whitley’s testimony jeopardizes the state’s
ability to prove these two elements.
To convince us otherwise, Whitely cites Hunt v. Commissioner of Pub. Safety for
the proposition that because an automobile i s registered to an individual, that provides

2 Minn. Stat. § 609.2112, subd. 1(a)(7) (stating that a person is guilty of criminal vehicular
homicide “where the driver who causes the collision leaves the scene of the collision”);
Minn. Stat. § 609.2113, subd. 2(7) (stating that a person is guilty of criminal vehicular
operation resulting in great bodily harm “where the driver who causes the accident leaves
the scene of the accident”).
5
strong circumstantial evidence that they were driving it. 356 N.W.2d 801, 803 (Minn. App.
1984). But the circumstantial evidence in Hunt went beyond registration: Hunt was near
the car when it crashed and there was an envelope addressed to him in the car. Id. at
802-03. And each of the other cases that Whitley cites to support this proposition include
circumstantial evidence of a defendant near the vehicle that they are alleged to have
operated. State v. Hughes, 355 N.W.2d 500, 501 (Minn. App. 1984) (motorcycle rider
claiming he was not driver found unconscious six to eight feet from crashed motorcycle) ,
rev. denied (Minn. Jan. 2, 2985); State v. Quinn, No. A10-2279, 2011 WL 5119120, at *1
(Minn. App. Oct. 31, 2011) (driver of crashed car fled scene and was found hiding in nearby
woods, less than a mile from the accident), rev. denied (Minn. Feb. 14, 2012). Because
there is no circumstantial evidence that Whitley was near her car at the time of the accident,
without Whitley’s confession that she was the one driving her car, the state’s ability to
prove this prong of each charge is jeopardized. Accordingly, the district court’s grant of
Whitley’s motion to suppress had a critical impact on the state’s case.
II. The district court properly determined that Whitley’s car was parked within
the curtilage of the home, protected by the Fourth Amendment.

Because the district court’s suppression of Whitley’s confession had a critical
impact on the state’s ability to prosecute her, we next evaluate the merits of the state’s
appeal. We begin with the argument that Whitley’s driveway was not protected as curtilage
under the Fourth Amendment. When considering the denial of a pretrial motion to
suppress, we review the district court’s factual findings for clear error and its legal
conclusions de novo. State v. Molnau, 904 N.W.2d 449, 451 (Minn. 2017). And we review
these issues aware that the state bears the burden of establishing that challenged evidence
6
was obtained in accordance with the constitution. State ex rel. Rasmussen v. Tahash,
141 N.W.2d 3, 13-14 (Minn. 1965).
The United States and Minnesota Constitutions prohibit law enforcement from
entering constitutionally protected areas without a warrant, with certain exceptions. U.S.
Const. amend IV; Minn. Const. art. I, § 10. An individual’s home is a constitutionally
protected area, and an area outside the home may be considered part of the home itself if it
constitutes curtilage. State v. Edstrom, 916 N.W.2d 512, 517 (Minn. 2018). Curtilage is
“the area around the home in which the activity of home life extends,” which the Supreme
Court describes as a familiar concept “easily understood from our daily experience.”
Oliver v. United States, 466 U.S. 170, 182 n.12 (1984).
To determine whether an area outside the home is curtilage, this court looks to
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. United States v. Dunn, 480 U.S. 294, 301 (1987). The Supreme Court has identified four factors to guide this
analysis: (1) the proximity to the home; (2) whether the area is fenced with the home;
(3) what the area is used for; and (4) any steps taken to obscure activities in the area from
passersby. Id. at 302. Because this determination is a legal conclusion, we review the
district court’s decision de novo. Molnau, 904 N.W.2d at 451.
7
We turn first to the proximity-to -the-home factor. Dunn, 480 U.S. at 301. The
district court determined that Whitley’s driveway was in close proximity to her home.3
The court did so without making any findings about the length of the distance from the
driveway to the house, and neither party’s brief provides a precise distance. But the record
includes photos. These establish that Whitley’s house sits on a small corner lot in the city
and the photo below from the record shows that the garage is a short distance from the
house: (Arrow added).4 The district court’s determination that this first Dunn factor weighs
in favor of curtilage protection is supported by the record, as well as by caselaw. In
State v. Chute, the Minnesota Supreme Court stated: “The backyard and driveway of a
home are often considered to be within the curtilage of a home.” 908 N.W.2d 578, 585
(Minn. 2018) (cataloguing cases that hold that the driveway and backyard are curtilage in

3 “When reviewing a district court’s pretrial order on a motion to suppress evidence, we
review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted). Here, the parties agreed that the district court would use
a stipulated set of exhibits as the record for the suppression decision, thus there is no dispute
over the facts.
4 The arrow points to Whitley’s garage. Whitley’s driveway runs perpendicular to the red
arrow and under the trees, emptying onto 18th Avenue.

8
state and federal courts). The Chute court determined that a trailer parked on a dirt
driveway was in close proximity to a single-family home in a Saint Paul suburb. Id.
Whitley’s house is on a small urban lot where the driveway is in close proximity to the
house.
Still, the state relies on two nonprecedential cases to persuade us otherwise. In one,
this court stated that driveways have not been deemed curtilage as a matter of law.5 But
neither the district court nor this court rely upon an ‘automatic’ curtilage status for a
driveway. And the second case—in addition to being nonprecedential—involved a large
rural property, which is factually at odds with this Minneapolis lot.6
Turning to the second Dunn factor (whether the driveway area is fenced within the
home), it is undisputed that the driveway is not entirely fenced. 480 U.S. at 302. The
driveway is bordered as follows: a fence on the left, trees on the right, the garage on one
end, and the street on the other. The district court found that because the driveway is not
in the fenced area of Whitley’s backyard and the driveway leads directly to a public street,
Whitley has a reduced expectation of privacy in h er driveway. We agree. This factor
weighs against classifying the driveway as curtilage.
The third Dunn factor, what the area is used for, favors classifying the driveway as
curtilage. Id. The district court determined that because Whitley’s driveway is solely and
exclusively used by her, it is subject to her exclusive control and right to exclude, and as a
result, this factor weighs in her favor. We agree with this analysis because parking a car

5 State v. Higgins, No. A14-1000, 2015 WL 5194079, *4 (Minn. App. Sept. 8, 2015), rev.
denied (Minn. Nov. 25, 2015).
6 State v. Lindeman, No. A20-0080, 2021 WL 318055, *3 (Minn. App. Feb. 1, 2021), rev.
denied (Minn. April 28, 2021).
9
in your driveway is an everyday activity connected to home life. Dunn held that the barn
in question “was not being used for intimate activities of the home” because “the use to
which the barn was being put could not fairly be characterized as so associated with the
activities and privacies of domestic life.” 480 U.S. at 302-03. In Dunn, the barn was not
being used as a barn, but rather to manufacture controlled substances, while here, the
driveway was being used as a driveway —a place to park a car. Id. Such a regular
day-to-day activity deserves the protection of the Fourth Amendment.
The state argues that a driveway is used to park vehicles, not for “the privacies of
life,” Chute, 908 N.W.2d at 585, because people park their cars in public places often. But
when police officers searched the car, it was in Whitley’s private driveway, not on the
street or in a public parking lot. And our conclusion is supported by Chute, where the
Minnesota Supreme Court found that a driveway regularly used by cars bringing persons
to the back entrance of the house and a garage, where it was likely that the back door was
the occupant’s main route of entering the house, related to the home and was associated
with the privacies of life. Id. As a result, it was curtilage. Id. In sum, because parking a
vehicle in a home’s driveway is an activity and privacy of domestic life, this factor favors
curtilage classification.
Finally, the fourth Dunn factor—any steps taken to obscure activities in the area
from passersby—favors curtilage classification as well. Id. at 302. The district court found
that Whitley “clearly took steps to obscure the activities in her driveway” from passersby.
We agree. Whitley’s driveway was surrounded on three sides, and she used a tarp to cover
her car. Still, the state argues that because the driveway is not obscured from a passerby
in the alley (who could peek between the trees) or on the street, the driveway is outside the
10
curtilage. But the supreme court has held that the curtilage of a home “need not be
completely shielded from public view” because homeowners may expose portions of the
curtilage of their homes to public view while still maintaining some expectation of privacy
in those areas. Chute, 908 N.W.2d at 585. And this court should not only apply curtilage
designation to those who can afford to obscure their entire property from view. Because
Whitley partially obscured her driveway from view, this final factor weighs in favor of
curtilage designation.
Given the weighing o f the Dunn factors, the district court properly held that
Whitley’s driveway is within the curtilage of her home and thus receives the same Fourth
Amendment protection. As a result, entry onto the driveway to investigate the Charger
required a warrant, unless an exception applied.
III. The district court properly determined that the exigency exception to the
warrant requirement did not apply.

Because Whitley’s driveway is curtilage, we next consider whether the exigency
exception to the warrant requirement justifies the officers’ act of entering the driveway and
lifting up the tarp. The state has the burden of showing the existence of exigent
circumstances. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). In reviewing whether a
valid exception to the warrant requirement justified a warrantless search or seizure,
appellate courts review the district court’s factual findings for clear error and its legal
conclusions de novo. State v. Stavish, 868 N.W.2d 670, 677 (Minn. 2015).
A warrantless search is permissible “when the delay necessary to obtain a warrant
might result in the loss or destruction of the evidence.” State v. Richards, 552 N.W.2d 197,
203 (Minn. 1996). The state, citing Cupp, argues that because the Charger, the “murder
weapon,” could be driven away at any moment, it meets this test. See Cupp v. Murphy,
11
412 U.S. 291, 296 (1973) (holding that where a limited search is necessary to preserve
highly evanescent evidence, an exigency exception applies to the Fourth Amendment
warrant requirement).
We disagree. The Charger was parked in Whitley’s driveway three weeks after the
accident occurred, distinguishing it from the evanescent evidence in Cupp where samples
from under a suspect’s fingernails containing traces of skin, blood, cells, and fabric from
his murdered wife’s nightgown could have disappeared quickly . Id. at 292. And unlike
Cupp, where police could not have prevented the suspect from destroying the evidence
while police waited for a search warrant, the police could have surveilled Whitley’s car to
prevent destruction attempts until a warrant was obtained.
The additional cases that the state cites to support its argument are distinguishable.
In State v. Ferraro, the Minnesota Supreme Court found that the exigency exception
applied because of the “inherent mobility of the van” the suspect was driving that contained
stolen goods. 290 N.W.2d 177, 179 (Minn. 1980). But Ferraro’s vehicle was stopped
alongside a busy highway, the contraband was in plain view, and Ferraro was in the driver’s
seat of the van, potentially able to escape with evidence. Id. This is not the case here,
where police had no reason to believe Whitley was about to drive away. And in
State v. Lussier, exigent circumstances justified a warrantless entry and search for evidence
of a sexual assault that could be destroyed by washing the suspect’s body and clothing.
770 N.W.2d 581, 588 (Minn. App. 2009), rev. denied (Minn. Nov. 17, 2009). Whitley’s
car was stored outside and within view of officers, who could see if any destruction
attempts were made. Finally, though practically there may be little difference between
searching a car and immobilizing it until obtaining a warrant, Chambers v. Maroney,
12
399 U.S. 42, 52 (1970), officers did not need to immobilize the car while they waited for a
warrant because the car was parked, under a tarp, and driverless, while Chambers had two
robbery suspects driving a car before it was stopped by police about two miles from the
robbery location. Id. at 44. Accordingly, these cases are distinguishable and do not
influence our analysis. Thus because the delay necessary to obtain a warrant would not
have resulted in the loss or destruction of the Charger, there was no exigency exception to
the Fourth Amendment warrant requirement here. Richards, 552 N.W.2d at 203.
7
In sum, because the district court’s pretrial suppression ruling jeopardizes the state’s
ability to make its case against Whitley, we allow this appeal. However, because Whitley’s
driveway is curtilage and the exigency exception does not apply, we affirm.
Affirmed.

7 The state further argues that exigent circumstances did not exist until a victim of the crash
succumbed to their injuries and died three weeks after the crash, therefore the delay
between the crash and the officers’ search of Whitley’s car is a “red herring.” But the
length of time that passed since the accident does not favor the state. Because the police
could have surveilled the car once they found it while waiting for a warrant three hours
after the crash or three weeks after the crash, there was no danger of potential evidence
destruction.