text:
    In the Matter of the WELFARE OF B.R.K.
    No. C7-01-1466.
    Supreme Court of Minnesota.
    April 3, 2003.

      Lori J. Marco, Briggs and Morgan, Special Ass’t State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, State Attorney General, St. Paul, MN, Dwayne Knutsen, Chippewa County Attorney, J. Richard Stermer, Assistant County Attorney, Montevideo, MN, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

After receiving a report of an underage drinking party at a private home, two Chippewa County sheriffs deputies entered and searched the home without obtaining a search warrant. As a result of their search, the deputies found appellant B.R.K. and three other teenagers hiding behind a furnace in the basement. When questioned by the deputies, B.R.K. admitted to consuming alcohol. He also tested positive for alcohol consumption. B.R.K. was subsequently charged with consumption of alcoholic beverages by a minor in violation of Minn.Stat. § 340A.503, subd. 1 (2002). At trial, B.R.K., who was not a resident of the home, moved to suppress all evidence gained by the warrantless entry and search. The district court denied the motion, concluding that B.R.K. did not have a reasonable expectation of privacy in the home and therefore did not have capacity to challenge the warrantless entry and search. The court then found B.R.K. guilty and adjudicated him a petty offender. The court of appeals affirmed. We reverse.

On the evening of March 10, 2001, B.R.K. attended a party at a private home in Chippewa County. The party was hosted by B.A.O. who lived at the home with his mother and stepfather. B.A.O.’s mother and stepfather did not authorize the party and were out of town on the date of the party. The party commenced at approximately 10:00 p.m. following a high school dance. About 14 teenagers attended and some of them consumed alcohol. B.A.O.’s stepbrother also was present at the party.

Between 10:30 and 11:00 p.m., the mother of one of the teenagers arrived at the home to pick up her daughter. After observing the activities, she warned the teenagers that the police may be called. The party then came to an abrupt end and all but four of the participants left. B.R.K. remained at the home along with B.A.O. and two other teenagers. The four remaining teenagers turned off the lights and attempted to lock all of the doors, but, due to ice buildup, they were unable to lock the front door. They then sat on a couch, talked, and watched television with the volume turned all the way down.

Meanwhile, at approximately 11:15 p.m., Deputy Irek Marcinkowski of the Chippewa County Sheriffs Department received a report of an underage drinking party at B.A.O.’s home. Concerned that there would be a large number of teenagers present at the party, Marcinkowski contacted Deputy Aalfs for back up and waited for Aalfs’ arrival at the dispatch center. Aalfs arrived at the dispatch center at approximately 11:50 p.m. and the two deputies then drove to the home, arriving at approximately 11:55 p.m. When the four teenagers noticed the deputies’ car pull into the driveway, they went to a back room in the basement, shut the door, and hid behind the furnace.

Upon arrival, Marcinkowski observed one car in the driveway. He also noticed that the home was dark except for an illuminated beer sign and another dim light that could be seen through a basement window. The home was a split-entry style home, with basement windows lower than waist level. While walking toward the front door of the home, Marcinkowski looked through the basement window and observed a built-in bar. Only after shining his flashlight through the window was he able to ascertain that there were open hard liquor containers and beer bottles on top of the bar. The deputies then knocked on the front door and announced themselves.

While the deputies were at the front door, a motor vehicle pulled into the driveway. The driver was the same woman who had earlier notified the Sheriffs Department about the party. The woman wanted one of the teenagers, allegedly inside the home, removed from the home because the teenager was supposed to be at her house with her daughters. The woman also identified the car in the driveway as belonging to the teenager she was there to pick up.

Marcinkowski testified that at this point he had multiple reservations about the safety of the teenagers inside the home. His concern primarily centered on the various safety hazards associated with teenagers consuming alcohol and the possibility that the teenagers would sustain injuries if they left the home under the influence of alcohol. Moreover, because of an earlier unrelated burglary of the home, he had knowledge that there were guns inside the home.

The deputies knocked on the front door a few more times. When there was no answer, they opened the door, entered the home, and announced themselves. Aalfs searched the upper level while Marcinkow-ski searched the basement. Marcinkowski walked down the hallway, searched two bedrooms, and finally opened a closed door. The door led to a backroom where he found the four teenagers hiding behind the furnace. When questioned by Marcin-kowski, B.R.K. admitted to consuming alcoholic beverages. The deputy administered a preliminary breathalyzer test, and B.R.K. tested positive for alcohol consumption. B.R.K. was then charged with consumption of alcoholic beverages by a minor in violation of Minn.Stat. § 340.503, subd. 1 (2002).

On May 24, 2001, a trial was held before the court. B.R.K. chose not to testify in his own defense. B.A.O. and Marcinkow-ski were the only two witnesses to testify. B.A.O. testified that he brought three teenagers to the party and that he did not know most of the other guests. It is unclear from the record whether the other guests were invited by B.A.O.’s stepbrother or merely attended the party with the consent of B.A.O. and/or his stepbrother. B.A.O. testified that “probably” some of the guests entered the residence without his or his stepbrother’s explicit consent, but “they knew that they could” enter the home and attend the party. B.R.K. was neither one of the teenagers B.A.O. brought to the party nor was B.R.K. personally invited to the party by B.A.O. Nevertheless, B.A.O. testified that B.R.K. was a Mend of his as well as a friend of his stepbrother and “was allowed to be” at the party.

During the trial, B.R.K. moved to suppress all evidence gained by the warrant-less entry and search. Marcinkowski was then questioned about why he and Aalfs did not obtain a warrant before entering and searching the home, and gave the following reasons:

Well under circumstances like that it’s not always quite easy to obtain a warrant when you have one vehicle team there [’]cause in order to obtain a search warrant it’s more than just calling my office. Actually we have to leave the property, and actually type a form, a warrant, and have — we have to find a judge that is willing to look over it, and sign it, and such. So it’s quite[indiscernible] and we did not have the comfort of leaving the property because if we would leave the property then I’m sure from past experience that the people that were there would probably be gone by the time that we return with the warrant.
* * * *
And plus we were aware that there were guns also, quite a few guns at that household as well.

When questioned further about whether he could have obtained assistance from a neighboring police department, Marcin-kowski replied “Sure we could, but weekend evenings [in the] City of Montevideo also get[ ] quite busy too so at that time it wasn’t that convenient.” The district court denied B.R.K’s motion and admitted the evidence.

The district court denied B.R.K.’s motion on the basis that B.R.K. did not have a reasonable expectation of privacy in the home and therefore did not have capacity to challenge the warrantless entry and search. In reaching this conclusion, the court emphasized that B.R.K. was not invited into the home. The court also noted that someone with authority to deny entry did not control attendance at the party, and that B.R.K. was neither a temporary resident of the home nor an overnight guest. Lastly, the court concluded that by concealing himself behind the furnace, B.R.K. demonstrated that he lacked even a subjective expectation of privacy. The court then found B.R.K. guilty of the charged offense. At the disposition hearing, the court adjudicated B.R.K. a petty offender, placed him under the supervision of community corrections for a period of 6 months, and ordered him to perform 80 hours of community service.

B.R.K. appealed, contending that as a social guest he had a legitimate expectation of privacy in the home where he attended the party and therefore had capacity under the Fourth Amendment to challenge the warrantless entry and search. The court of appeals concluded that B.R.K. may have demonstrated a subjective expectation of privacy when he hid behind the furnace. In the Matter of the Welfare of B.R.K., No. C7-01-1466, 2002 WL 1050385, at *2 (Minn.App. May 28, 2002). However, the court also concluded that B.R.K’s expectation of privacy was not one that society would recognize as reasonable. Id. In reaching this conclusion, the court relied on the following: (1) B.R.K. was not an overnight guest and was not given keys to the premises; (2) B.R.K. was present at an underage drinking party held without the consent of the adults who owned the home; (3) B.R.K. was not specifically invited to the party by the juvenile host; and (4) B.R.K. was on the premises for only a “couple of hours” before the police arrived. Because the court determined that B.R.K. lacked a reasonable expectation of privacy, it did not reach the issue of whether the warrantless entry and search violated the Fourth Amendment.

We granted B.R.K’s petition for review. On appeal, we are asked to determine (1) whether B.R.K. had a reasonable expectation of privacy in the home; (2) whether the warrantless search of the home violated the Fourth Amendment; and (3) whether exigent circumstances justified the war-rantless entry and search.

I.

B.R.K. asserts that the sheriffs deputies violated the Fourth Amendment when they conducted a warrantless search of B.A.O.’s home and therefore all evidence obtained as a result of the search must be suppressed. Before we can consider the validity of the search, we must first determine whether B.R.K. has a right under the Fourth Amendment to challenge the deputies’ conduct. The district court denied the motion to suppress on the grounds that B.R.K. did not have a right under the Fourth Amendment to challenge the search because he lacked a reasonable expectation of privacy in the home. Here, the facts are not in dispute and the district court’s decision is a question of law; accordingly, we “independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

The Fourth Amendment guarantees: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, the Fourth Amendment is a personal right and an individual must invoke its protections. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). An individual may invoke the protection of the Fourth Amendment by showing “that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” Carter, 525 U.S. at 88, 119 S.Ct. 469 (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Thus, the determination of whether B.R.K. can invoke the protections of the Fourth Amendment involves a two-step analysis. First, we must determine whether B.R.K. exhibited an actual subjective expectation of privacy in the home and, second, whether that expectation is reasonable. See Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring).

We first consider B.R.K’s assertion that he demonstrated a subjective expectation of privacy by taking precautions to protect his privacy. The United States Supreme Court instructs that to determine whether a person has exhibited a subjective expectation of privacy, courts should focus their inquiry on the individual’s conduct and whether the individual “[sought] to preserve [something] as private.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462,146 L.Ed.2d 365 (2000) (citation omitted). Federal courts have concluded that a defendant’s attempt to conceal activity or items illustrated a subjective expectation of privacy. Katz, 389 U.S. at 352, 88 S.Ct. 507 (concluding that when Katz entered the phone booth, shut the door, and paid the toll he was entitled to assume his conversation would be private); U.S. v. King, 227 F.3d 732, 744 (6th Cir.2000) (concluding that the defendant by hiding his cocaine in the basement demonstrated a subjective expectation of privacy in the basement); U.S. v. Nerber, 222 F.3d 597, 603 (9th Cir.2000) (concluding that the defendant demonstrated a subjective expectation of privacy by closing the door, drawing the blinds, and ingesting cocaine). An examination of B.R.K’s conduct demonstrates that he sought to conceal his presence in the home and thereby preserve his privacy. B.R.K. and the other teenagers attempted to lock all the outside doors to the home, turned off lights, and turned the television volume all the way down. When the deputies arrived, B.R.K. and the other teenagers hid in a backroom in the basement, closed the door, and concealed themselves behind the furnace. Based on these actions, we conclude that B.R.K. demonstrated an actual subjective expectation of privacy in the home.

We next consider whether B.R.K.’s expectation of privacy is reasonable, i.e., one that is recognized by society. It is well-settled law that individuals have a reasonable expectation of privacy in their own homes and thus have the capacity to challenge warrantless entries and searches of their homes. See United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). But here, we must determine whether B.R.K’s expectation of privacy in the home of another is reasonable.

Fourth Amendment jurisprudence involving an individual’s reasonable expectation of privacy in the home of another has evolved since the Supreme Court addressed the issue over 40 years ago in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones, the Court concluded, “anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress.” Id. at 267, 80 S.Ct. 725. Jones was arrested in his friend’s apartment during the execution of a search warrant. Id. at 258-59, 80 S.Ct. 725. He moved to suppress evidence obtained through the search on the ground that the warrant was not supported by probable cause. Id. at 259, 80 S.Ct. 725. Jones’s friend had given him a key to the apartment and permission to use it. Id. Jones had slept at the apartment “maybe a night.” Id. On the day of the search, Jones’s friend was out of town and Jones admitted himself into the apartment with the key. Id. After concluding that Jones’s friend consented to his presence in the apartment, the Court held that Jones was legitimately on the premises and had the capacity to challenge the validity of the search. Id. at 267, 80 S.Ct. 725.

Eighteen years later, in Rakas, the Supreme Court repudiated the “legitimately on premises” standard as too broad. Ra-kas, 439 U.S. at 142, 99 S.Ct. 421. The Court then announced that the proper inquiry to determine whether an individual has capacity to claim the protection of the Fourth Amendment is “whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas, 439 U.S. at 143, 99 S.Ct. 421. Nevertheless, the Court reaffirmed the factual holding in Jones. Noting that Jones had permission to use his friend’s apartment, had a key to the apartment, kept possessions in the apartment, and had dominion and control over the apartment, the Court in Rakas concluded that Jones had a reasonable expectation of privacy in his friend’s apartment. Id at 149, 99 S.Ct. 421.

Next, in Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Supreme Court concluded that overnight guests have an expectation of privacy in a host’s home that society is prepared to recognize as reasonable; thus, overnight guests have the capacity to claim the protection of the Fourth Amendment. In considering the issue, the Court rejected the argument that an overnight guest must have the power to “admit or exclude” others in order to claim Fourth Amendment protection. Id. at 99, 110 S.Ct. 1684. The Court stated that hosts generally respect the privacy interests of their guests despite the fact that guests do not have a legal interest in the home or a legal authority to admit or exclude others from the home. Id. The Court also looked to the “everyday expectations of privacy” shared by society:

Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.

Id. at 98,110 S.Ct. 1684.

Most recently, in Carter, 525 U.S. at 91, 119 S.Ct. 469, the Supreme Court conelud-ed that the two defendants, visiting the lessee’s apartment to bag cocaine, did not have a reasonable expectation of privacy in the apartment and therefore lacked capacity to challenge the search. In Carter, the defendants were at the lessee’s apartment for about 2 ½ hours “for the sole purpose of packaging * * * cocaine.” Id. at 86, 119 S.Ct. 469. They had never previously been to the lessee’s apartment and gave the lessee cocaine as payment for use of the apartment. Id.

In determining that the defendants in Carter lacked a reasonable expectation of privacy, the Supreme Court focused on the specific facts of the case and concluded that for the defendants the apartment was merely a place to complete a business transaction. Id. at 90, 119 S.Ct. 469. Next, the Court concluded that “ ‘[a]n expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.’ ” Id. (quoting New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987)). The Court then stated:

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely ‘legitimately on the premises’ as typifying those who may not do so, the present case is obviously somewhere in between.

Id. at 91, 119 S.Ct. 469. Based on evidence that the defendants were at the apartment for a short period of time, for purely commercial purposes, and lacked any previous connection to the lessee of the apartment, the Court concluded that the defendants’ “situation is closer to that of one simply permitted on the premises.” Id.

It is within the framework of this case law that we analyze B.R.K’s expectation of privacy. B.R.K. does not contend that he was an overnight guest. Therefore, the narrow holding of Olson — that overnight guests have a reasonable expectation of privacy in their host’s home — is not directly applicable. However, B.R.K. argues that he was a short-term social guest in B.A.O.’s home. The state does not respond directly to this argument, but instead argues that B.R.K. was “merely on the premises” and therefore lacks a reasonable expectation of privacy. The state relies on the following facts to support its position that B.R.K. does not have a reasonable expectation of privacy: (1) the owners of the home did not authorize the party; (2) B.R.K. was not specifically invited to the party; (3) individuals were going in and out of the home throughout the duration of the party; and (4) B.R.K. was at the home for a short period of time, about two hours.

The state’s arguments are unpersuasive. The state focuses on B.R.K’s status during the party, which is not dis-positive for purposes of our analysis because the party was over when the police entered and searched the home. The party ended some time between 10:30 p.m. and 11:00 p.m. when all but three of the attendees left. The deputies did not arrive at the home until 11:55 p.m., approximately one hour after the party ended. Thus, our analysis must also focus on B.R.K’s status from the time the party ended until the deputies found him in the basement. Although B.R.K. was not specifically invited to the party, his presence in B.A.O.’s home during, and more importantly after, the party was consented to by B.A.O. Upon conclusion of the party, B.A.O. engaged in social interaction with his remaining guests when they sat in the basement talking and watching television. B.A.O. also considered B.R.K. a friend, which demonstrates a previous social connection between the two teenagers. Finally, not only did B.A.O. consent to B.R.K’s presence in the home, but he also shared his privacy interest with B.R.K. by allowing him to participate in locking the doors, turning off the lights, and hiding behind the furnace. Based on these facts, we conclude that B.R.K. was a short-term social guest in B.A.O.’s home.

Having concluded that B.R.K. was a short-term social guest, we next consider whether such a short-term social guest has a reasonable expectation of privacy in his host’s home. The state argues that under the plurality opinion of Carter, B.R.K. does not have a reasonable expectation of privacy because Carter distinguishes between an overnight guest, who does have a reasonable expectation of privacy, and a person merely present as a guest, who does not. In contrast, B.R.K. contends that as a short-term social guest he has a reasonable expectation of privacy in the home. He also asserts that Carter is inapposite because the Supreme Court based its decision on the commercial nature of the transaction and did not analyze the defendants’ expectation of privacy in the context of an overnight guest versus a short-term social guest.

In support of its position that under Carter those “present as a guest” do not have a reasonable expectation of privacy, the state quotes the following language from Carter: “an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.” 525 U.S. at 90,119 S.Ct. 469. This statement does not support the state’s position. It follows a discussion of Jones and specifically refers to the Supreme Court’s repudiation of the Jones rule that anyone legitimately on the premises had the capacity to challenge the legality of a search. Id. Additionally, the plurality in Carter left open the possibility that nonovernight guests with a social nexus to the owner may have a reasonable expectation of privacy. First, the Court recognized that the defendants in Carter, persons on the premises to conduct business, had a greater expectation of privacy than a person “legitimately on the premises.” Id. at 91, 119 S.Ct. 469. By analogy, short-term social guests also have a greater expectation of privacy than an individual merely “legitimately on the premises.” Second, the Court emphasized the lack of a previous relationship between the defendants and the lessee, implying that guests with a social connection to the host may have a legitimate expectation of privacy. Id. Therefore, Carter does not prohibit us from concluding that short-term social guests do have a reasonable expectation of privacy.

A close reading of Carter reveals that it does not address the issue of whether short-term social guests have a reasonable expectation of privacy in their host’s home. In Carter, the Supreme Court did not address the defendants’ expectation of privacy in terms of their status as social guests. Instead, the Court focused its analysis on the commercial nature of the defendants’ presence in the home. Accordingly, only after taking into account the lesser expectation of privacy individuals have in commercial property did the Court conclude that the defendants lacked a reasonable expectation of privacy in the apartment. The animating principle behind Carter is that an individual’s expectation of privacy in commercial premises is less than an individual’s expectation in a private residence, not that short-term social guests do not have a reasonable expectation of privacy. Carter, 525 U.S. at 90, 119 S.Ct. 469.

Other courts have interpreted Carter similarly. See United States v. Higgins, 282 F.3d 1261, 1271 (10th Cir.2002) (stating “Carter effectively heightened the burden for a defendant claiming a reasonable expectation of privacy in a dwelling other than his own home, when the defendant’s presence in the dwelling is for a commercial or business purpose”) (internal quotations omitted); State v. Trecroci, 246 Wis.2d 261, 630 N.W.2d 555, 569-70 (App.2001) (rejecting the state’s argument that Carter stands for the proposition that only overnight guests have standing to challenge a search and concluding that under Carter a nonovernight guest may have standing to challenge a search when “the guest’s relationship with the host and the host’s property is more firmly rooted”). United States v. Pollard, 215 F.3d 643, 647 (6th Cir.2000) (interpreting Carter to hold that defendants “had no legitimate expectation of privacy because they failed to demonstrate they were guests on the premises for a personal occasion, rather than for strictly business purposes”).

In addition, the concurring and dissenting opinions in Carter lend credence to B.R.K’s assertion that short-term social guests have a reasonable expectation of privacy. Three dissents and two concurrences in Carter embrace the position that short-term social guests have a reasonable expectation of privacy in their host’s home. 5 Wayne R. LaFave, Search and Seizure § 11.3 (3d ed. 1996) (Supp.2003).

In a concurring opinion in which he gave the plurality the deciding vote, Justice Kennedy stated:

I join the Court’s opinion, for its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.

Carter, 525 U.S. at 99, 119 S.Ct. 469 (Kennedy, J., concurring). But Justice Kennedy concurred with the plurality because in his view the defendants did not qualify as social guests.

The dissent written by Justice Ginsburg and joined by Justices Stevens and Souter concluded that, “when a homeowner chooses to share the privacy of her home and her company with a short-term guest,” the guest’s subjective expectation of privacy is one our society is prepared to recognize as reasonable. Id. at 109, 119 S.Ct. 469 (Ginsburg, J., dissenting). To reach this conclusion, the dissent first recognized that the home is “the most essential bastion of privacy recognized by the law.” Id. at 106, 119 S.Ct. 469. The dissent then noted that to deny nonovernight social guests Fourth Amendment protections would put hosts at risk for unreasonable searches and seizures of their homes when they invite short-term social guests into their homes. Id. at 107-08, 119 S.Ct. 469. The dissent further reasoned that if short-term social guests are not protected by the Fourth Amendment the police may be tempted “to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night.” Id. at 108, 119 S.Ct. 469. Thus, “people are not genuinely secure in their * * * houses * * * against unreasonable searches and seizures if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.” Id. (internal quotations and citations omitted). The dissent then noted that the logic behind Olson extends to short-term social guests because “[o]ne need not remain overnight to anticipate privacy in another’s home.” Id. at 109,119 S.Ct. 469.

Justice Breyer agreed with the dissent’s conclusion that the defendants had the capacity to claim Fourth Amendment protection. But he concurred in the judgment because he concluded that the search did not violate the defendants’ Fourth Amendment rights. Id. at 103, 119 S.Ct. 469. While not binding authority, the dissenting and concurring opinions in Carter indicate that a majority of the Supreme Court considers a short-term social guest’s expectation of privacy legitimate.

We view the dissent’s reasoning as being particularly persuasive. First, we agree that to fully protect an individual’s privacy in his or her own home, a social guest in the host’s home must also be able to claim protection of the Fourth Amendment. Second, we also conclude that the essential reasoning in Olson is applicable to short-term social guests. The key analysis in Olson centered on whether overnight visits to other people’s homes qualified as a “longstanding social custom that serves functions recognized as valuable by society.” Olson, 495 U.S. at 98, 110 S.Ct. 1684. Like an overnight visit, entering the home of another for a short-term social visit is also “a longstanding social custom that serves functions recognized as valuable by society.” Olson, 495 U.S. at 98, 110 S.Ct. 1684. Here, B.R.K. was in B.A.O.’s home spending time with his friend B.A.O., talking, and watching television. There are numerous other occasions for which people visit the home of another without spending the night: holiday gatherings, dinner parties, and family events to name a few. Short-term social visits are just as common as overnight visits, if not more so. Accordingly, we conclude that as a short-term social guest, B.R.K. had a reasonable expectation of privacy in his host’s home and therefore can claim the protections of the Fourth Amendment.

Our conclusion is further buttressed by the reasoning used in the decisions of other courts that have determined short-term guests have a reasonable expectation of privacy in their host’s home. See Trecroci, 630 N.W.2d at 569-70 (concluding that the defendant had capacity to object to a search of another’s attic where she was the fiancée of the owner and had used the attic for socializing on prior occasions); Pollard, 215 F.3d at 647-48 (holding that the defendant had capacity to object to a search of another’s home because the defendant had been Mends with the lessee for 7 years, had spent the night at the home on prior occasions, sometimes ate meals with the family in the home, and kept some personal belongings in a closet in the living room); Morton v. United States, 734 A.2d 178, 182 (D.C.1999) (concluding that defendant had a legitimate expectation of privacy in the home of another because the defendant had known the owner for over 10 years, the owner invited him into the home, and the defendant was a frequent visitor to the home); Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir.1996) (holding in the context of 42 U.S.C. § 1983 that Bonner had a reasonable expectation of privacy in another’s home because Bonner was a frequent visitor to the residence and often ran errands for the owner of the home).

Finally, we address B.R.K’s argument that his expectation of privacy is also reasonable under Article I, Section 10 of the Minnesota Constitution. The provisions against unreasonable searches and seizures in Article I, Section 10 mirror those of the Fourth Amendment. Article I, Section 10 reads “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.” Therefore, when we interpret Article I, Section 10 of the Minnesota Constitution, decisions of the Supreme Court interpreting the Fourth Amendment are of persuasive, although not compelling, authority. State v. Harris, 590 N.W.2d 90, 97 (Minn.1999). However, we are free to interpret the Minnesota Constitution as affording greater protection against unreasonable searches and seizures than the United States Constitution, but do not do so cavalierly. Id. at 97-98.

On two occasions, we have interpreted Article I, Section 10 as affording greater protections against unreasonable searches and seizures than the Fourth Amendment. In Ascher v. Comm’r of Public Safety, 519 N.W.2d 183 (Minn.1994), we declined to follow the Supreme Court’s holding in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). In Sitz, the Court concluded that roadblocks where law enforcement officers stop and investigate all drivers for drunk driving do not violate the Fourth Amendment. However, we concluded that roadblocks where law enforcement officers stop all drivers in an effort to apprehend drunk drivers violate Article I, Section 10, which requires an objective individualized articu-lable suspicion of criminal wrongdoing.

In California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court concluded that a seizure occurs when a person submits to a show of authority by the police. In In the Matter of the Welfare of E.D.J., 502 N.W.2d 779 (Minn.1993), we declined to follow the holding in Hodari and continued to adhere to the long-standing rule that a seizure occurs when a reasonable person feels she is not free to leave.

Under Article I, Section 10, only defendants who can demonstrate a legitimate expectation of privacy to the area searched may contest the validity of the search. State v. Carter, 596 N.W.2d 654, 658 (Minn.1999). It is well established that under Article I, Section 10, an individual’s expectation of privacy in his or her own home is reasonable. We conclude that to fully protect the privacy interest an individual has in his or her home, short-term social guests, such as B.R.K., must also be able to claim the protection of Article I, Section 10. Therefore, we conclude that even if short-term social guests do not have a reasonable expectation of privacy under the Fourth Amendment, their expectation is legitimate under Article I, Section 10 of the Minnesota Constitution. Accordingly, we hold that the district court erred when it found that B.R.K. did not have a reasonable expectation of privacy.

II.

Having determined that B.R.K. had a reasonable expectation of privacy in B.A.O.’s home, we now consider the validity of the sheriffs deputies’ search. B.R.K. contends that the deputies violated the Fourth Amendment when they peered into the home through the basement window with a flashlight. Moreover, he argues, this violation became more egregious when the deputies conducted a warrantless search of the home.

The Fourth Amendment and Article I, Section 10 of the Minnesota Constitution protect individuals from unreasonable searches and seizures by the government of “persons, houses, papers and effects.” “A search occurs whenever governmental agents intrude upon an area where a person has a reasonable expectation of privacy.” State v. Hardy, 577 N.W.2d 212, 215 (Minn.1998). Absent exigent circumstances and probable cause, or consent, a warrantless entry and search of a private residence is per se unreasonable and violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); In re D.A.G., 484 N.W.2d 787, 789 (Minn.1992); Othoudt, 482 N.W.2d at 222. All evidence obtained by illegal searches is inadmissible in court and the fruits of a warrantless entry made without probable cause and exigent circumstances must be suppressed. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Paul, 548 N.W.2d 260, 264 (Minn.1996).

Here, the deputies violated the Fourth Amendment and Minnesota Constitution Article I, Section 10 when they entered and searched the home without first obtaining a search warrant. We reach this conclusion without addressing B.R.K.’s argument that the deputy’s conduct of looking into the basement window with a flashlight constituted a search. Accordingly, the fruits of the entry and search must be suppressed unless there were exigent circumstances to justify the warrantless search. Paul, 548 N.W.2d at 264.

Neither the district court nor the court of appeals reached the issue of exigent circumstances because they determined that B.R.K. could not invoke the protection of the Fourth Amendment. B.R.K. argues that exigent circumstances did not exist to justify the warrantless entry. Specifically, B.R.K. asserts that the possibility of weapons in the home and the request of a woman, who was not related to any of the minors allegedly in the house, do not qualify as exigent circumstances.

In some instances, a “single factor” warrants a finding of exigent circumstances. We have found that “hot pursuit of a fleeing felon, imminent destruction or removal of evidence, protection of human life, likely escape of the suspect, and fire” qualify as exigent circumstances justifying a warrantless search and seizure. D.A.G.-, 484 N.W.2d at 791 (quoting State v. Gray, 456 N.W.2d 251, 256 (Minn.1990)). When a “single factor” exigent circumstance does not exist, we apply a totality of the circumstances test. We look to the following factors first articulated in Dorman v. United States as a guide:

(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense;
(d)whether police have strong reason to believe the suspect is on the premises;
(e) whether it is likely the suspect will escape if not swiftly apprehended; and
(f) whether peaceable entry was made.

D.A.G., 484 at 791 (quoting Gray, 456 N.W.2d at 256, citing Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970)).

Here, the only single factor that approximates' exigent circumstances is the possibility of danger to human life. Deputy Marcinkowski testified that he was concerned for the teenagers’ safety because he had “reasonable suspicion” to believe that teenagers were drinking alcoholic beverages inside the home. Moreover, he had knowledge that there were guns inside the home. While serious, these concerns do not qualify as exigent circumstances. Although the deputies knew that there were guns in the home, there was no indication that the teenagers had armed themselves or planned to use the guns. Moreover, there was no indication that the teenagers were suffering from any serious medical consequences of alcohol consumption. Thus, we conclude that a single factor exigent circumstance did not exist.

We next consider whether exigent circumstances exist under the totality of the circumstances. Applying the Dorman factors, we conclude that exigent circumstances do not exist. While a serious offense, underage drinking is not a “grave or violent” offense like robbery or assault. Although there were guns inside the home, there was no indication that the teenagers themselves were armed. The probable cause here was not particularly strong. As evidence that there was a teenage drinking party going on, the police relied on the informant’s telephone call and her statement that the car in the driveway belonged to a teenager suspected of being inside the home. However, when the deputies arrived, the house was dark, quiet, and there was only one car in the driveway. These factors do not support a finding of exigent circumstances.

We also observe that the deputies’ conduct was inconsistent with the presence of exigent circumstances. Once Marcinkow-ski received the informant’s tip about the party, he was aware that teenagers were allegedly consuming alcohol and that there were guns inside the home. Despite this knowledge, Marcinkowski waited approximately 35 minutes at the dispatch center for Aalfs to arrive before proceeding to the residence.

Finally, Marcinkowski admitted that one reason the deputies did not obtain a warrant was because it was inconvenient to leave the property and they feared that if they left, the teenagers would also leave. If concerned about the teenagers leaving the property, the deputies should have called other police officers for assistance. Mere inconvenience does not justify an unreasonable intrusion into an individual’s home.

In the absence of exigent circumstances, the warrantless entry and search of B.A.O.’s home violated the Fourth Amendment and Minnesota Constitution Article I, Section 10. Therefore, the fruits of the entry and search must be suppressed. Paul, 548 N.W.2d at 264.

Reversed.

HANSON, J.,»took no part in the consideration or decision of this case.

      . The district court erred when it found that the woman driving the vehicle was at the home to have her minor child removed from the home.

      . The district court made a finding that B.A.O. “knew” only three of the party guests. This finding is erroneous because B.A.O. also knew and was friends with B.R.K. Therefore, at a minimum, B.A.O. knew the three guests he brought with him, plus B.R.K.

      . Other courts have relied on these dissenting and concurring opinions when analyzing whether a defendant has the capacity to invoke Fourth Amendment protections. United States v. Higgins, 282 F.3d 1261, 1271 (10th Cir.2002) (concluding that Carter must be analyzed in light of Justice Kennedy’s concurrence where he concluded that nonovernight, social guests generally have a legitimate expectation of privacy); State v. Ortiz, 618 N.W.2d 556, 560 (Iowa 2000) (stating "[i]n deciding the present case, we must be mindful of this [Justice Kennedy's] concurring opinion, as well as the plurality opinion, because, without Justice Kennedy’s concurrence, the Court’s finding of no reasonable expectation of privacy would not have prevailed"); Morton v. United States, 734 A.2d 178, 182 (D.C.1999) (relying on the various opinions in Carter, which conclude that social guests have a general expectation of privacy, the court concluded that the defendant, as a guest of the home owner, did have a reasonable expectation of privacy).

      . Other courts have signaled a future willingness to find that short-term social guests do have a legitimate expectation of privacy. See United States v. Gamez-Orduno, 235 F.3d 453, 459 n. 8 (9th Cir.2000) ("While overnight guest status is sufficient for Fourth Amendment protection, it may not be necessary.”); State v. Ortiz, 618 N.W.2d 556, 561 (Iowa 2000) (holding that defendant was on the premises for commercial purposes and therefore "failed to show he had a reasonable expectation of privacy as a social guest”).

      . B.A.O. and Marcinkowski both testified that none of the teenagers consented to the deputies' warrantless search of the home.

      . The woman’s request to remove a teenager from the home does not constitute an exigent circumstance. The woman was not the owner of the home, nor was §he the parent or guardian of the teenager allegedly in the home. At best, this interaction supports the argument that probable cause existed to believe that the teenagers were inside the home consuming alcohol.


source: Caselaw Access Project

author: ANDERSON, Russell A, Justice. BLATZ, Chief Justice, PAGE, Justice,

license: Public Domain

text:
    Harvey CHRISTENSEN, Petitioner, Appellant, v. MILBANK INSURANCE COMPANY, Respondent.
    No. C3-01-2078.
    Supreme Court of Minnesota.
    April 3, 2003.

      Robert E. Kuderer, Teresa M. Thompson, Johnson & Condon, P.A., Minneapolis, MN, for Appellant.
    John H. Scherer, Rajkowski Hansmeier Ltd., St. Cloud, MN, for Respondent.
   OPINION

ANDERSON, Russell A, Justice.

In this case, we are asked to interpret the scope of the initial permission rule which provides that when a named insured initially gives another permission to use a vehicle, subsequent use, short of conversion or theft of the vehicle, remains permissive even though the use is outside the initial grant of permission. We hold, in the context of the “theft or conversion” exception to the initial permission rule, that the intentional dominion or control necessary for “conversion” cannot be shown by accidental destruction of the vehicle in a collision. Further, we hold that “closer to the risk” analysis is inappropriate where a school district’s insurance plan states “this agreement provides primary coverage” and the school district employee’s personal insurance policy states that its coverage “shall be excess over any other collectible insurance.”

From 6 a.m. to 12 noon on Friday, July 1, 1994, appellant Harvey Christensen, a drivers’ education instructor, conducted drivers’ education instruction with a van owned by Independent School District # 787. After he finished instruction, Christensen drove home to wash the van. Christensen did not have permission to use the van for personal reasons at any time but did have permission to park the van at his home.

Christensen washed the van in the afternoon after he mowed the lawn and cleaned the house. Over the course of the afternoon, he also drank about six beers. At about 6:30 p.m., as he was finishing supper, Christensen decided to go for a drive. Since the drivers’ education van was blocking his car in the driveway, he put a cooler of beer and ice in the van and took the van for a drive. Christensen drank a couple more beers between 6:30 and 8:15 p.m. About 8:30 p.m., Christensen was involved in a collision with a vehicle driven by Veronica Wagner on State Highway 10. He was intoxicated at the time. The van was totally destroyed. Wagner’s passengers sued Christensen, District # 787, and others for past and future damages resulting from their injuries.

The van was insured by District # 787 through the Minnesota School Board Association Insurance Trust (MSBAIT), a self-insurance pool specifically authorized by Minnesota Statutes § 471.981, subd. 1 (2002). This plan provides:

WHO IS COVERED
1. You are a plan participant for any covered auto.
2. Anyone else is a plan participant while using, with your permission, [any auto you own, hire or borrow except] * * * [none applicable].

The plan also states:

PURCHASE OF INSURANCE
1. For any covered auto you own, this agreement provides primary coverage. For any covered auto you don’t own, the coverage provided by this agreement is excess over any purchased collectible insurance.

Christensen’s personal auto insurer was Milbank Insurance Company. Milbank’s policy provides:

INSURING AGREEMENT
A. We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident. * * * We will settle or defend, as we consider appropriate, any claim or suit asking for these damages.
⅜ ⅜ ⅜ ⅜
OTHER INSURANCE
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.

MSBAIT initially defended Christensen and the school district in the action brought by Wagner’s passengers. MSBAIT later tried to tender the defense of the action to Milbank. Milbank rejected the tender on the grounds that Christensen’s Milbank policy was excess and that the MSBAIT plan was primary but agreed to act in the capacity of an excess insurer. Ultimately, Christensen settled with payments totaling $78,000. The payments were made pursuant to a loan receipt provided by MSBAIT. The loan receipt was conditioned upon Christensen’s promise that he would seek declaratory relief against Milbank for recovery of damages and attorney fees for the original action as well as for the declaratory proceeding for breach of the duty to defend. Christensen then sought declaratory relief against Milbank for the breach of its duties to defend and indemnify him and for the recovery of attorney fees and costs incurred in the original action and the declaratory judgment action.

Both parties brought motions for summary judgment. The district court granted Christensen’s summary judgment motion and ordered judgment against Milbank for the amount of the settlement plus attorney fees and costs in the original action and the declaratory judgment action. In doing so, the district court determined: (1) that Christensen was not a permissive user within the context of the initial permission rule because Christensen’s use of the vehicle constituted conversion since he had improperly taken the van, failed to return it, and ultimately destroyed it; and (2) that the Milbank policy should provide primary coverage because Milbank intended to insure Christensen’s personal vehicle use and District # 787’s plan intended to cover only school use of the vehicle.

The court of appeals, concluding that the district court’s definition of conversion was “too broad,” held that “[i]n a situation in which the property is destroyed, conversion may be shown only if the destruction was intentional.” Christensen v. Milbank Ins. Co., 643 N.W.2d 639, 643 (MinmApp. 2002). The court of appeals applied its definition to the instant facts and determined that Christensen did not convert the van. It therefore concluded that the district court erred in granting summary judgment for Christensen and reversed. Christensen appealed, and this court granted review to consider the scope of the conversion exception to the initial permission rule.

I.

On appeal from summary judgment, our review is de novo; we consider whether there are any genuine issues of material fact and whether either party is entitled to judgment as a matter of law. Zimmerman v. Safeco Ins. Co. of America, 605 N.W.2d 727, 729 (Minn.2000); Washington v. Milbank Ins. Co., 562 N.W.2d 801, 804 (Minn.1997); see also Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.1991). In this case there are no genuine issues of material fact, and we consider de novo what constitutes “conversion” under the “conversion or theft” exception to the initial permission rule.

Minnesota law provides that an owner of a motor vehicle may be held vicariously liable for a driver’s use of that vehicle if the owner gives the driver express or implied permission. Minn.Stat. § 170.54 (2002). To effectuate this intent, automobile liability insurance policies contain an omnibus clause that creates liability insurance for permissive drivers. 8 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 111.1, at 111-5 to 111-6 (3d ed.1997). Whether and under what circumstances an automobile is considered to be used with the permission of the named insured within the meaning of the omnibus clause is the province of the courts. In construing the scope of coverage created by omnibus clauses, courts have followed one of three rules: (1) the strict or conversion rule; (2) the initial permission rule; or (3) the minor deviation rule. See C.T. Drechsler, Annotation, Automobile Liability Insurance: Permission or Consent to Employee’s Use of Car Within the Meaning of Omnibus Coverage Clause, 5 A.L.R.2d 600, 622 (1949).

In Milbank Mutual Insurance Co. v. United States Fidelity and Guaranty Co., we adopted the initial permission rule. 332 N.W.2d 160, 165 (Minn.1983) (noting that the policy behind Minn.Stat. § 170.54 [the Safety Responsibility Act] is to ensure “persons injured by the negligent operation of automobiles ‘an approximate certainty’ of an effective recovery” when liability would not otherwise exist) (citation omitted). Under the initial permission rule, when permission to use a vehicle is initially given, subsequent use, short of actual conversion or theft, remains permissive even though the use is not within the contemplation of the parties or is outside the scope of the initial grant of permission. Id. at 167; see also 6C John Alan Appel-man & Jean Appelman, Insurance Law and Practice § 4366, at 197, § 4367 (Richard B. Buckley ed. 1979) (“[Some] states have arbitrarily adopted a doctrine [known as the hell or high water rule, or the initial permission rule] that if the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or high water, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated.”). In Milbank, we looked to legislative history and to our trend of interpreting the Safety Responsibility Act and omnibus clauses in liability insurance policies to conclude “that the public policy of this state favors protection of the uncompensated victims of automobile accidents over any interest of an owner-insured or his insurer that he be not subject to liability when his permittee exceeds the scope of the initial permission.” 332 N.W.2d at 166-67.

The facts of Milbank are analogous to the instant case. In Milbank, an employee had permission to take a company truck home. Id. at 162. The employer told the employee that he was only to drive the truck home and back to work and was not to go “joyriding.” Id. Nevertheless, the employee took his wife and son for a drive in the truck and was involved in an accident. Id. The employer’s insurance company denied coverage claiming the use was nonpermissive. Id. We adopted the initial permission rule and held that because of the initial grant of permission, the employee’s use was permissive and thus covered by the employer’s insurance. Id. at 167. We did not define “conversion.”

In other contexts, we have defined “conversion” as “an act of willful interference with [the personal property of another], done, without lawful justification, by which any person entitled thereto is deprived of use and possession,” Larson v. Archer-Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (1948), and “the exercise of dominion and control over goods inconsistent with, and in repudiation of, the owner’s rights in those goods.” Rudnitski v. Seely, 452 N.W.2d 664, 668 (Minn.1990); accord Hildegarde, Inc. v. Wright, 244 Minn. 410, 413, 70 N.W.2d 257, 259 (1955). Citing Larson, Christensen argues that the “intent, knowledge, or motive of the converter is immaterial” and that the court of appeals erred in limiting conversion to intentional destruction of property. 226 Minn, at 317, 32 N.W.2d at 650. Milbank counters that intent should be the key element to conversion in this context because for the initial permission rule to serve its purpose and provide coverage through the vehicle’s policy to permissive users, damage or destruction to the vehicle cannot be the determinative factor. We agree with Milbank.

The Restatement defines conversion as “an intentional exercise of dominion or control over the chattel.” Restatement (Second) of Torts § 223 cmt. b (1965). As such, “[m]ere nonfeasance or negligence, without such an intent, is not sufficient for conversion.” Id. Describing the character of the intent required, the Restatement explains:

The intention necessary to subject to liability one who deprives another of the possession of his chattel is merely the intention to deal with the chattel so that such dispossession results. It is not necessary that the actor intend to commit what he knows to be a trespass or a conversion. It is, however, necessary that his act be one which he knows to be destructive of any outstanding possesso-ry right, if such there be.

Restatement (Second) of Torts § 222 cmt. c (1965).

We find the Restatement instructive. A wrongful intent to appropriate chattel for one’s own purposes is the essence of the “conversion or theft” exception. To hold that conversion requires an intentional destruction of the vehicle unnecessarily narrows the meaning of “conversion.” In the instant case, it is undisputed that Christensen did not intend to wrongfully deprive the school district of its right to use or control its van. Christensen, 643 N.W.2d at 644 (“There is no evidence that Christensen’s destruction of the vehicle was intentional. To the contrary, all parties seem to agree it was accidental.”). In keeping with the purpose of the Safety Responsibility Act, which affords compensation to victims of automobile accidents, we hold that under the “theft or conversion” exception to the initial permission rule, the intentional dominion or control necessary for “conversion” cannot be shown by accidental destruction of the vehicle in a collision, and therefore, because there is no other basis for a finding of the requisite wrongful intent, Christensen did not convert the van.

We are troubled by the dissent’s conclusion that Christensen’s decision to drink excessively and drive provides the requisite intent for conversion. Under such a rule, an uninsured permittee, who is involved in a one-vehicle accident while driving impaired, would not be covered under the named-insured’s policy. This per se rule would preclude recovery for automobile accident victims even if the intoxicated driver was not negligent. See Minn.Stat. § 169.96(b) (2002) (providing that violation of a traffic statute is prima facie evidence of negligence, not negligence per se); Kedrowski v. Czech, 244 Minn. Ill, 118, 69 N.W.2d 337, 342 (1955) (noting that “the mere fact that [the plaintiff] may have been under the influence of alcohol did not in and of itself constitute contributory negligence”); Kirsebom v. Connelly, 486 N.W.2d 172, 175 (Minn.App. 1992) (concluding there was sufficient evidence for the trial court to instruct the jury on Minnesota’s prohibition on driving under the influence of alcohol and remanding for new trial); Mueller v. Sigmond, 486 N.W.2d 841, 843-44 (Minn.App.1992) (determining that blood alcohol concentration evidence is not presumptively relevant in a civil action for damages and holding that the trial court’s decision to exclude such evidence was not clearly erroneous); see also 4 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 26.25 (4th ed.1999); 4A Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 65.25 (4th ed.1999). Furthermore, it seems to us, the dissent’s position opens the door to exempting many kinds of negligent conduct — drag-racing or driving well in excess of the speed limit come to mind — from coverage. In considering such conduct within the context of the initial permission rule, the Colorado Supreme Court reiterated Colorado’s policy “to avoid inadequate compensation to victims of automobile accidents” and concluded that “even ‘ludicrous’ uses are within the insured’s permission as long as they do not constitute theft or conversion.” Raitz v. State Farm Mut. Auto. Ins. Co., 960 P.2d 1179, 1183, 1187, n. 15 (Colo.1998) (“Angelopulous * * * did not convert the van when both he and Naran-jo rode on its roof.”) (citation omitted); see also Wiglesworth v. Farmers Ins. Each., 917 P.2d 288, 292 (Colo.1996) (“Because the record indicates that the Smiths gave Wiglesworth the keys to their truck and informed him that he could drive the truck to work without asking for further permission, we conclude that Wiglesworth had the initial permission to use the truck [when he participated in a drag race] * * * ) Determining that a decision resulting in negligent behavior constitutes conversion contravenes the express public policy of our state to provide certainty of recovery for those injured in automobile accidents.

II.

Because Christensen did not convert the school district’s van, we conclude that District # 787 is vicariously ha-ble for Christensen’s negligent use of the vehicle under the initial permission rule. Accordingly, both the MSBAIT and the Milbank policies provide coverage for the accident. In determining whether the MSBAIT policy or Christensen’s Milbank policy is primary, the parties disagree whether “closer to the risk” analysis is appropriate. Christensen submits that because “closer to the risk” analysis is appropriate, the district court properly concluded that Milbank intended to provide primary coverage in this situation. Mil-bank maintains that the express language of the policies, not intent, controls here. “Closer to the risk” analysis, which involves the interpretation of insurance contracts, is a question of law that we review de novo. Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn.1994).

Generally speaking, insurance contracts, “like other contracts, must be construed according to the terms the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense, so as to give effect to the intention of the parties as it appears from the entire contract.” Bo-bich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24 (1960). However, in determining which policy is primary, courts may look beyond the language of the policies. Garrick, 469 N.W.2d at 711-12 (examining the function and insuring intent of the policies instead of the language of “other insurance” clauses); Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 85 (Minn.1988) (“In Minnesota, this court does not simply look at the type of ‘other insurance’ clauses involved. In [Integrity] * * * this court explained that the better approach was to ‘allocate respective policy coverages in light of the total policy insuring intent, as determined by the primary risks upon which each policy’s premiums were based and as determined by the primary function of each policy.’ ”) (quoting Integrity Mut. Ins. Co. v. State Auto. & Cas. Underwriters Ins. Co., 307 Minn. 173, 175, 239 N.W.2d 445, 446 (1976)). However, looking to insuring intent is appropriate only where policies contain conflicting “other insurance” clauses:

When it is clear that two or more companies are among themselves liable to the insured for his loss but the apportionment among the companies cannot be made without violating the other insurance clause of at least one company, then the courts must look outside the policies for rules of apportionment.

Integrity, 307 Minn, at 174-75, 239 N.W.2d at 446, quoted in Garrick, 469 N.W.2d at 711-12.

In this case, the MSBAIT policy provides that its coverage is primary for any covered vehicle owned by the school district. The Milbank policy provides that if the insured is involved in an accident while operating a nonowned vehicle, the Milbank coverage is excess to other collectible insurance. Because there is no conflict between the language of the two policies— the MSBAIT policy is clearly primary— analyzing intent is inappropriate.

Accordingly, we conclude that MSBAIT is the primary insurer. As such, Milbank is not required to indemnify Christensen for expenses paid in connection with the settlement of a claim that arose out of the accident.

The decision of the Court of Appeals is affirmed and this decision is remanded to the district court for entry of summary judgment for Milbank.

Affirmed.

HANSON, J., took no part in the consideration or decision of this case.

MEYER, J., took no part in the consideration or decision of this case.

BLATZ, Chief Justice,

(concurring in part, dissenting in part).

I concur with the majority opinion that the intentional dominion or control necessary for conversion cannot be shown by accidental destruction of the vehicle involved in the collision. I also agree with the majority holding that “closer to the risk analysis” is inappropriate under the circumstances presented here. I respectfully disagree, however, with the disposition of this case. To conclude that Christensen, who had consumed “about six beers” before taking the van for a drive and who was convicted of driving under the influence, did not convert the school district’s van effectively collapses the “theft or conversion” exception into a theft exception.

In my view, Christensen’s decision to drink excessively and drive constitutes conversion: “an act of willful interference with [the personal property of another] done, without lawful justification, by which any person entitled thereto is deprived of use and possession.” Larson v. Archer-Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (1948). It is this choice to drink excessively and use another’s property — not the destruction of the property — that constitutes the requisite wrongful intent necessary for conversion. Quoting from the Restatement commentary, the majority recognizes that the actor need not “intend to commit what he knows to be * * * a conversion” and that “[t]he intention necessary to subject to liability one who deprives another of the possession of his chattel is merely the intention to deal with the chattel so that such disposition results.” (Emphasis added.)

Nonetheless, after quoting approvingly from the Restatement commentary, the majority immediately states “[a] wrongful intent to appropriate chattel for one’s own purposes is the essence of the ‘conversion or theft’ exception.” This is a misstatement of the law, as it redefines conversion to mean theft and effectively eliminates the exception of conversion from the initial permission rule. Such a holding departs from the principles set forth in our prior case law. See Milbank Mut. Ins. Co. v. United States Fid. & Guaranty Co., 332 N.W.2d 160 (Minn.1983). The rule enunciated by the majority makes it difficult— perhaps impossible — to imagine any fact scenario other than theft that would prevent an owner from being vicariously liable. Therefore, I respectfully dissent and would reverse the court of appeals.

PAGE, Justice,

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Chief Justice BLATZ.

      . Christensen was charged with and pled guilty to driving under the influence.

      . Under the loan receipt, Christensen received $115,471.13, representing $78,000 in indemnity payments, $34,471.03 in defense costs, and fees, from MSBAIT as a loan to fund his defense and indemnify him. The loan was made repayable only in the event and to the extent that Christensen recovered monies from other insurance carriers.


author: STONEBURNER, Judge.

text:
    J.M., Respondent, v. MINNESOTA DISTRICT COUNCIL OF the ASSEMBLIES OF GOD, Appellant, Respondent, St. James Assembly of God Church, Respondent, Appellant, Jerald Dvorscak, Defendant.
    Nos. C4-02-1533, CX-02-1584.
    Court of Appeals of Minnesota.
    March 25, 2003.

      Teresa K. Patton, Sprenger & Lang, P.L.L.C., and Jeffrey M. Ellis, Jeffrey M. Ellis, P.L.L.C., Minneapolis, for respondent J.M.
    Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, for Minnesota District Council of the Assemblies of God.
    Richard P. Mahoney, Victor Lund, Ma-honey, Dougherty and Mahoney, P.A., Minneapolis, for St. James Assembly of God Church.
    Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellants St. James Assembly of God Church and the Minnesota District Council of the Assemblies of God challenge denial of their motions for summary judgment, contending that the religious freedom clauses of the federal and state constitutions deprive the district court of subject-matter jurisdiction over claims asserted by respondent J.M. for the hiring and retention of a pastor who engaged in a sexual relationship with her during counseling. Because court examination of the council’s and the church’s hiring decisions are precluded by the First Amendment, we reverse in part and affirm in part.

FACTS

Based on his degree from a church-owned Bible college, references, and a test to determine that his doctrinal position was consistent with the doctrinal position of the Assemblies of God Church, Jerald Dvorscak was licensed to be a pastor by appellant Minnesota District Council of the Assemblies of God (the council). Dvors-cak’s first employment was as an associate pastor in Ohio. During Dvorscak’s employment there, a young woman complained to the senior pastor that Dvorscak had inappropriately touched her. The senior pastor advised Dvorscak to have no further contact with the woman. No other church officials were involved and no further action was taken.

Dvorscak later began looking for a position as a senior pastor. The council recommended Dvorscak as a candidate for senior pastor to fill an opening with one of its affiliates, appellant St. James Assembly of God Church (the church). Dvorscak went through the church’s selection process and was hired by the church as senior pastor. The church did not make any inquiries of Dvorscak’s former employer.

Respondent J.M. and her family joined the church about two years after Dvorscak was hired. When J.M.’s husband was diagnosed with a life-threatening illness, J.M. became more actively involved in the church and J.M. states that she sought counseling from Dvorscak. J.M. and Dvorscak began to spend large amounts of time together and became involved in a clandestine sexual relationship. A member of the church’s Board of Deacons spoke with Dvorscak once about the poor impression created by his attention to J.M.

About one month later, J.M. revealed the nature of her relationship with Dvors-cak to a visiting pastor, who disclosed the relationship to board members. A board member contacted the council. Dvorscak was confronted and admitted the relationship. The church requested and received his resignation, and the council revoked his credentials.

J.M. sued Dvorscak, the church, and the council in an eleven-count complaint. J.M. settled her claims against Dvorscak. J.M. dismissed some of her claims against the council and the church. After various pretrial motions, the only claims remaining against the church were negligent hiring, negligent retention, and employer liability under Minn.Stat. ch. 148A, and the only claims remaining against the council were negligent hiring and liability under Minn. Stat. ch. 148A. The church and the council moved for summary judgment on these remaining claims, asserting that the district court is barred from considering these claims by constitutional protections provided by the United States and Minnesota constitutions. The district court denied summary judgment. The church’s and the council’s separate appeals have been consolidated.

ISSUES

1. Does the district court have subject-matter jurisdiction over claims against appellant church entities related to the hiring of a pastor?

2. Does the district court have subject-matter jurisdiction over claims against appellants under Minn.Stat. § 148A.03 that are not related to the hiring of pastor?

3. Does the district court have subject-matter jurisdiction over claims against appellants for negligent retention of a pastor who had a sexual relationship with a parishioner to whom he was providing counseling?

ANALYSIS

Generally, an interlocutory appeal may not be taken from a denial of summary judgment, but an issue relating to subject-matter jurisdiction is appealable immediately. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832-33 (Minn.1995). Issues of subject-matter jurisdiction are reviewed de novo. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn.2002) (■Odenthal 1). The state and federal constitutions limit a secular court’s resolution of disputes involving religious institutions. Id.

I. Hiring claims

a. The First Amendment

The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “[Cjongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. The First Amendment applies to judicial power. Odenthal I, 649 N.W.2d at 435. Appellants assert that a court’s examination of a church’s decision to hire a pastor, whether pursuant to common law or statute, violates both the Establishment Clause and the Free Exercise Clause of the First Amendment.

I. The Establishment Clause

Government action is not prohibited by the Establishment Clause if it (a) has a secular purpose; (b) neither inhibits nor advances religion as its primary effect; and (c) does not create excessive entanglement between church and state. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). At issue in this case is the entanglement prong, under which the court “may not inquire into or review the internal decision making or governance of a religious institution.” Odenthal I, 649 N.W.2d at 434. (citing Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979)).

J.M. alleges that the council and the church are liable for Dvorscak’s hiring under the common law negligence and under MinmStat. ch. 148A.

Negligent hiring claims are predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others. Liability for negligent hiring is determined by the totality of the circumstances surrounding the hiring and whether the employer exercised reasonable care.

L.M. v. Karlson, 646 N.W.2d 537, 544 (Minn.App.2002) (citations and quotations omitted).

Chapter 148A of the Minnesota Statutes imposes liability on the employer of a member of the clergy who performs or purports to perform psychotherapy and who sexually exploits a patient if

[t]he employer fails or refuses to make inquiries of an employer or former employer whose name and address have been disclosed to the employer and who employed the psychotherapist as a psychotherapist within the last five years, concerning the occurrence of sexual contacts by the psychotherapist with patients or former patients.

Minn.Stat. § 148A.03(a)(2) (2002); see Minn.Stat. § 148A.01 subd. 5 (defining psychotherapist to include member of clergy who performs or purports to perform psychotherapy). While this section does not explicitly impose liability for hiring, to the extent that the language may be construed to impose liability for hiring a pastor without making such an inquiry, the church’s and council’s involvement in Dvorscak’s hiring is implicated. Appellants assert that a court’s examination of J.M.’s common law and statutory claims related to Dvorscak’s hiring creates excessive entanglement between church and state.

The Establishment Clause is not implicated where neutral principles of law, developed and applied without particular regard to religious doctrines, establish the applicable standard of care. See Odenthal I, 649 N.W.2d at 436. In this case, even though neutral principles of law can be applied to determine whether a member of the clergy is performing psychotherapy (discussed below) and neutral principles of law can be applied to determine what the church and the council knew or should have known about a pastor’s employment history at the time of hiring, appellants argue that J.M.’s hiring-related claims implicate core, fundamental church doctrines governing identification of individuals “called” to the ministry. We agree.

A determination of whether the statutorily required inquiries were made of a pastor-candidate’s former employers does not involve church doctrine, but a determination of how that information should be used in a hiring decision would force the court into an examination of church doctrine governing who is qualified to be a pastor.

When claims involve “core” questions of church discipline and internal governance, the Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review.
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[Appointment and discharge] claims are fundamentally connected to issues of church doctrine and governance * * *.

Black v. Snyder, 471 N.W.2d 715, 720 (Minn.App.1991) (holding that prohibition against litigating matters at core of church’s religious practice required dismissal of assistant-pastor’s discharge-related claims), review denied (Minn. Aug. 29, 1991). Court examination of J.M.’s common-law and statutory hiring-related claims require entanglement between church and state and are precluded by the Establishment Clause of the First Amendment. Therefore, we conclude that the district court does not have subject-matter jurisdiction over J.M.’s claims involving Dvorscak’s hiring, whether based on common law or statute. The district court erred by denying appellants’ motions for summary judgment dismissing J.M.’s hiring-related claims.

Because the Establishment Clause precludes jurisdiction over J.M.’s hiring-related claims, we do not reach appellants’ arguments on these claims based on the Free Exercise Clause and the state constitution.

II. Statutory claims not related to hiring

J.M. alleges that the church and the council are liable as Dvorscak’s employers under Minn.Stat. § 148A.03 for actions unrelated to hiring. The statute imposes liability on the employer of a member of the clergy who performs or purports to perform psychotherapy and who sexually exploits a patient if:

(1) the employer fails or refuses to take reasonable action when the employer knows or has reason to know that the psychotherapist engaged in sexual contact with the plaintiff or any other patient or former patient of the psychotherapist; or
(2) the employer fails or refuses to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the psychotherapist as a psychotherapist within the last five years, concerning the occurrence of sexual contacts by the psychotherapist with patients or former patients of the psychotherapist.

Minn.Stat. § 148A.03(a).

a. Determination of whether the council was an employer as defined in statute

The council denies that it was Dvorscak’s employer and asserts that it therefore cannot be liable to J.M. under Minn.Stat. § 148A.03. Furthermore, the council argues that the district court lacks jurisdiction to examine whether the council was Dvorscak’s employer for purposes of liability under Minn.Stat. § 148A.03 because such an examination would involve a challenge to the internal rules and doctrines of the Assemblies of God Church. The council argues that the First and Fourteenth Amendments that permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government and require that civil courts accept their decisions as binding prohibit such a challenge. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 720, 96 S.Ct. 2372, 2385-6, 49 L.Ed.2d 151 (1976). The council then refers to the Articles of Incorporation and bylaws of the church to argue that, as a matter of law, the council is not Dvorscak’s employer. The council, however, has not moved for summary judgment on the issue of whether or not it is Dvors-cak’s employer and that issue is not before us: we only examine whether the court has jurisdiction to make this determination. We conclude that the court has such jurisdiction. There are five neutral factors commonly used to determine whether an employment relationship exists:

(1) the right to control the means and manner of performance; (2) the mode of payment; (3) furnishing of materials and tools; (4) control of premises where work is performed; and (5) right of the employer to hire and discharge.

Stenvik v. Constant, 502 N.W.2d 416, 420 (Minn.App.1993), review denied (Minn. Aug. 24, 1993). Application of these neutral principles to the hierarchical structure of the church as set out in church doeu-merits does not constitute a challenge to the church documents. The court is bound by the structure established by the documents. Determination of whether the structure constitutes an employer-employee relationship for purposes of chapter 148A of the Minnesota Statutes is not a doctrinal matter, so there is no First Amendment barrier to resolution by civil courts. See Piletich v. Deretieh, 328 N.W.2d 696, 700 (Minn.1982) (holding that a matter of property ownership can be constitutionally examined by court applying neutral principles of law to terms of church documents).

Because a determination of whether an employer-employee relationship exists between the council and Dvorscak can be accomplished by application of neutral principles to undisputed facts, we conclude that the district court has subject-matter jurisdiction and did not err by denying the council’s motion for summary judgment on J.M.’s claims against it for non-hiring related aspects of Minn.Stat. § 148A.03.

b. Liability of church as employer under chapter 148A

The church admits that it was Dvors-cak’s employer, but argues that chapter 148A of the Minnesota Statutes cannot constitutionally be applied to it. We disagree.

The church first argues that a determination of whether Dvorscak was acting as a psychotherapist would involve excessive entanglement. But the statute provides neutral standards to guide the determination. A psychotherapist is defined as a “member of the clergy * * * whether or not licensed by the state, who performs or purports to perform psychotherapy.” Minn.Stat. § 148A.01, subd. 5. Psychotherapy is defined as “the professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition.” Minn.Stat. § 148A.01, subd. 6. In Odenthal I, the Minnesota Supreme Court held that a determination of whether a minister was providing services equivalent to psychotherapy, such that he was an unlicensed mental health practitioner for purposes of chapter 148B of the Minnesota Statutes, does not excessively entangle the court in religion. Odenthal I, 649 N.W.2d at 438.

We note that the statutory definition of mental health services is neutral on its face — it describes “assessment, treatment, or counseling” without regard to whether religious or spiritual principles are involved. While the counseling or treatment relationship may arise in many contexts, including the context of a clergy and church member, the statute provides a neutral and secular description of the purpose and character of the counseling relationship.
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[The minister] fails to identify how determining whether a person is providing “assessment, treatment, or counseling” for the conditions described in the statute requires any inquiry into the religious aspect of the relationship. Therefore, we see no need to parse out secular and religious counseling to apply this definition, and its application does not “alter or impinge upon the religious character” of the relationship. * * * Therefore, applying the statutory definition of mental health services does not excessively entangle the courts in religion.

Id. (citations omitted). Based on Odenthal I, we conclude that the determination of whether Dvorscak was providing psychotherapy does not involve excessive entanglement of the court and religion.

The church next argues that application of the statute “involves the state telling the church how its ministers shall conduct their counseling sessions with parishioners.” But the application of the statute to the church does not create such a danger. Minn.Stat. § 148A.03 neither prescribes any particular behavior on the part of those providing psychotherapy, nor does the statute require the courts to examine the merits or methods of the psychotherapy provided. The statute imposes liability on an employer for the employer’s acts or failure to act, to the extent it was a proximate and actual cause of any injuries sustained. Minn.Stat. § 148A.03. The argument that application of the statute involves the state dictating to the church how ministers conduct counseling sessions with parishioners is without merit.

The church further argues that application of the statute would amount to a substitution of the state’s view of reasonable conduct for the church’s view of reasonable conduct, amounting to an interference with church governance. But we have previously held that a church-employer can be sued for failing to take reasonable actions to prevent sexual harassment under the Minnesota Human Rights Act, without violating the First Amendment or the state constitution. Black, 471 N.W.2d at 721 (holding that even if enforcement of harassment prohibitions would incidentally burden religious activity or belief, claim can be asserted because state’s interest in eradicating sexual harassment in the workplace is compelling.) The Human Rights Act imposes a duty on an employer to take prompt and appropriate action when it knows or should know of conduct in the workplace amounting to sexual harassment. Continental Can Co. v. State, 297 N.W.2d 241 (Minn.1980). We do not see any difference between the duty to take reasonable action imposed by the Human Rights Act and the duty imposed by Minn. Stat. § 148A.03. And

[g]iven the frequently vulnerable nature of those receiving mental health services, the state’s interest in their safety and well-being is compelling.

Odenthal I, 649 N.W.2d at 443. Based on the reasoning set out in Black, we conclude that Minn.Stat. § 148A.03 can be applied constitutionally to the church. The district court did not err by denying summary judgment on J.M.’s claims for the church’s liability under Minn.Stat. § 148A.

III. Church’s liability for negligent retention

Generally, an employer has the duty “to refrain from retaining employees with known dangerous proclivities.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.App.1993), review denied (Minn. Apr. 20, 1993). An employer may be liable for negligent retention when

the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigating, discharge, or reassignment.

Id. at 423 (citation omitted). Under this cause of action, an employer’s liability is not dependent on whether the employee acted within the scope of employment. Id. at 422.

The standard used to determine negligent retention is based on neutral principles of law. The court need not investigate the role of pastor within church hierarchy or the nature of Dvorscak’s employment with the church in order to resolve a claim of negligent retention. The unfitness alleged is the secular act of sexually violating a parishioner, not any alleged unfitness that relates to Dvorscak’s duties as a pastor. The court only need evaluate what the church knew or should have known about Dvorscak’s propensity to sexually violate parishioners with whom he was counseling, and, if there was such knowledge, whether the church’s actions were reasonable considering the problem. As with determination of J.M.’s claims under chapter 148A of the Minnesota Statutes, evaluation of the negligent retention claim can be accomplished using neutral standards, without regard to religious doctrines. See Odenthal v. Minn. Conference of Seventh-Day Adventists, 657 N.W.2d 569 (Minn.App. 2003) (Oden-thal ID (holding that claims against church employer for negligent retention of a pastor as a secular counselor, who allegedly engaged in negligent secular counseling, can be resolved through application of neutral principles of law and without violating the federal or state constitutions), petition for review filed (Minn. Feb. 26, 2003). The district court did not err by denying the church’s motion for summary judgment on J.M.’s claims for negligent retention.

DECISION

The district court’s denial of summary judgment based on lack of subject-matter jurisdiction over J.M.’s claims against the church and the council for non-hiring related claims under Minn.Stat. § 148A.03 and J.M.’s negligent retention claim against the church is affirmed. The district court’s denial of summary judgment based on lack of subject-matter jurisdiction for hiring-related claims against the church and the council is reversed.

Affirmed in part and reversed in part.

      . The district court specifically concluded that it has jurisdiction to consider the statutory claims and declined to address the common-law claims on the basis that it had not granted appellants permission to amend their pleadings to assert lack of subject-matter jurisdiction over the common-law claims. But lack of subject-matter jurisdiction can be raised at any time. Minn. R. Civ. P. 12.08(c). Because the issue was fully briefed and argued below, in the interest of judicial economy, we address the merits of this claim on appeal.

      . The right to control is the most significant factor. The council notes that J.M. dismissed her claims against the council for negligent retention and negligent supervision because the council did not have supervisory authority over Dvorscak. By conferring jurisdiction, we do not preclude a determination that, as a matter of law, the council is not Dvorscak's employer.